Exhibit 4.1

THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this “Third Amendment”) is made and entered into as of the 26th day of August, 2011 and effective in accordance with Section 2 below, by and among MULTI-COLOR CORPORATION, an Ohio corporation (the “Company”), COLLOTYPE INTERNATIONAL HOLDINGS PTY LIMITED (ACN 007 628 015), an Australian company limited by shares and registered in South Australia (the “Australian Borrower” and, together with the Company, the “Borrowers”), each lender party hereto (collectively, the “Approving Lenders” and, each individually, an “Approving Lender”), certain Subsidiaries of the Company party hereto, BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and U.S. L/C Issuer (the “Administrative Agent”), and WESTPAC BANKING CORPORATION (ACN 007 457 141), as Australian Administrative Agent and Australian L/C Issuer (the “Australian Agent” and, together with the Administrative Agent, the “Agents”).

Recitals:

A. The Borrowers, the Lenders and the Agents are parties to that certain Credit Agreement dated as of February 29, 2008 (as amended by that certain First Amendment to Credit Agreement dated as of June 28, 2010 and that certain Second Amendment to Credit Agreement dated as of March 25, 2011, the “Credit Agreement”), pursuant to which, inter alia, the Lenders agreed, subject to the terms and conditions thereof, to advance Loans (as this and other capitalized terms used herein but not otherwise defined herein are defined in the Credit Agreement) to the Borrowers.

B. The Company desires to purchase, indirectly through a new Subsidiary to be formed, Adhesion Holdings, Inc. and its Subsidiaries and all of the shares of a Chilean joint venture currently owned in part by Adhesion Holdings, Inc. and its Subsidiaries (collectively, the “Adhesion Acquisition”).

C. The Company desires to finance a portion of the purchase price of the Adhesion Acquisition through either an increase in the amount of the Term A Loan (the “Term Loan Increase”) or a new term loan (the “New Term Loan”) to be made by the Approving Lenders that commit thereto (such Approving Lenders, the “Increase Lenders”), under and as part of the credit facility established pursuant to the Credit Agreement.

D. The Company has requested, inter alia, that the Lenders (i) permit the Adhesion Acquisition, (ii) agree to increase the amount of uncommitted increases in the U.S. Revolving Commitments under Section 2.15 of the Credit Agreement to $100,000,000, (iii) extend the Maturity Date of the Term A Loan and each of the Revolving Credit Facilities to the date that is five years after the Effective Date (as defined below), (iv) extend the scheduled amortization of the Term A Loan upon the consummation of the Adhesion Acquisition and (v) agree to make certain other changes to the Credit Agreement as described in this Third Amendment.

E. Subject to the terms and conditions of this Third Amendment, the Approving Lenders have agreed to such requests.

Agreements:

NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual agreements hereinafter set forth, the parties hereto hereby agree as follows:

 

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1. Amendments to Credit Agreement. The Credit Agreement shall be amended and restated in its entirety as set forth on Annex A attached hereto, and Exhibit D to the Credit Agreement shall be amended and restated in its entirety as set forth on Annex B attached hereto.

2. Closing Date; Conditions Precedent; Effective Date.

(a) The closing date of this Third Amendment shall occur on the date on which the Borrowers have satisfied (or the Administrative Agent and the Lenders have waived) all of the following conditions precedent (such date being the “Closing Date”), it being understood that the modifications to the Credit Agreement set forth in Section 1 above shall not be effective until both the Closing Date and the Effective Date have occurred:

(1) Receipt by the Administrative Agent of (i) counterparts of this Third Amendment executed by each of the Agents, the Borrowers, the other Loan Parties and the requisite Lenders under the Credit Agreement (it being understood that the requisite Lenders shall be determined upon the occurrence of the Effective Date and the effectiveness of the Master Assignment (defined below)), (ii) Notes executed by the Company in favor of each Increase Lender requesting Notes to evidence the portion of Term Loan Increase or New Term Loan (as applicable) to be held by such Increase Lender, (iii) in the case of a Loan Party organized under the Laws of any jurisdiction other than Australia, such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of such Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof that is authorized to act as a Responsible Officer in connection with this Third Amendment, the Credit Agreement and the other Loan Documents to which such Loan Party is a party, and in the case of a Loan Party organized under the laws of Australia, a certificate in relation to the Loan Party given by a director of such Loan Party substantially in the form of Exhibit K to the Credit Agreement (or such other form as may be approved by the Agents), including all necessary attachments and in each case attaching such documents (including all applicable Organization Documents) and certificates as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Company, the Australian Borrower and each Subsidiary Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that the failure to be in good standing or so qualified could not reasonably be expected to have a Material Adverse Effect, (iv) customary opinions of counsel to the Loan Parties (which such opinions shall expressly permit reliance by successors and assignees of each Agent and each Lender) in form and substance reasonably satisfactory to the Administrative Agent and (v) Schedule 7.03(i) to the Credit Agreement setting forth Acquired Indebtedness acquired or assumed in connection with the Adhesion Acquisition.

(2) Receipt by the Administrative Agent of that certain Master Assignment and Assumption Agreement dated as of the date hereof, duly executed by each party thereto (the “Master Assignment”), which Master and Assignment shall have an “Effective Date” (as such term is used therein) of August 30, 2011.

(3) Receipt by the Administrative Agent of such other documents as the Administrative Agent shall reasonably request.

 

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(b) The modifications to the Credit Agreement set forth in Section 1 above shall be effective upon the following (such date of effectiveness, which date may be after the date of this Third Amendment, being the “Effective Date”):

(1) the occurrence of the Closing Date;

(2) the occurrence of the “Effective Date” under the Master Assignment and the receipt by each assignor under the Master Assignment of such amounts as it is required to receive pursuant to the Master Assignment and the assignments contained therein;

(3) all fees required to be paid on or before the Effective Date having been paid, including without limitation, each of the fees provided for in that certain fee letter dated as of August 13, 2011 by and among, Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill”), J.P. Morgan Securities LLC, Bank of America, N.A., JPMorgan Chase Bank, N.A. and the Company; and

(4) unless waived by the Administrative Agent, the Company having paid all fees, charges and disbursements of counsel to Merrill and the Administrative Agent, including any special or local (including foreign) counsel (directly to such counsel if requested by the Administrative Agent), to the extent invoiced prior to or on the Effective Date, plus such additional amounts of such fees, charges, disbursements as shall constitute such counsel’s reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings with respect to this Third Amendment (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).

3. Other Loan Documents. Any reference to the Credit Agreement in the other Loan Documents executed and delivered pursuant to or in connection with the Credit Agreement, shall from and after the Effective Date, be deemed to refer to the Credit Agreement, as modified by this Third Amendment.

4. Confirmation of Debt; Reaffirmation. Each of the Loan Parties hereby affirms all of its liabilities and obligations to the Agents and the Lenders under the Credit Agreement, the Notes and the other Loan Documents, as modified hereby or pursuant hereto, and that such liabilities and obligations are owed to the Agents and the Lenders. Each Loan Party further acknowledges and agrees that as of the date hereof, it has no claims, defenses or set-off rights against any Agent or Lender of any nature whatsoever, whether sounding in tort, contract or otherwise; and there are no claims, defenses or set-offs to the enforcement by the Agents of the liabilities and obligations of the Borrowers to the Agents and the Lenders under the Credit Agreement, the Notes or the other Loan Documents. In furtherance of the foregoing, each Loan Party (a) agrees that the transactions contemplated by this Third Amendment shall not limit or diminish the obligations of such Person under, or release such Person from any obligations under, the Loan Documents to which it is a party, (b) confirms and reaffirms its obligations under the Loan Documents to which it is a party and (c) agrees that the Loan Documents to which it is a party remain in full force and effect and are hereby ratified and confirmed.

5. No other Modifications; Same Indebtedness. Except as expressly provided in this Third Amendment, all of the terms and conditions of the Credit Agreement, the Notes and the other Loan Documents remain unchanged and in full force and effect. The modifications effected by this Third Amendment and by the other instruments contemplated hereby shall not be deemed

 

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to provide for or effect a repayment and re-advance of any of the Loans now outstanding, it being the intention of the Borrowers and the Lenders hereby that the Indebtedness owing under the Credit Agreement and the Notes, as amended by this Third Amendment, be and hereby is the same Indebtedness as that owing under the Credit Agreement and the Notes immediately prior to the effectiveness hereof.

6. Representations and Warranties. Each Loan Party represents and warrants that (a) it has the corporate or other organizational power and authority to make, deliver and perform this Third Amendment and the transactions contemplated hereby, (b) it has taken all necessary corporate or other action to authorize the execution, delivery and performance of this Third Amendment, (c) this Third Amendment has been duly executed and delivered on behalf of such Person, (d) this Third Amendment constitutes a legal, valid and binding obligation of such Person, enforceable against it in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally and by general equitable principles (whether enforcement is sought by proceedings in equity or at law), (e) no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, such Loan Party of this Third Amendment other than, to the extent required under applicable law, filing this Third Amendment and/or a summary thereof with the Securities and Exchange Commission on Form 8-K, 10-K or 10-Q, as applicable, (f) each of the representations and warranties made by such Loan Party in or pursuant to the Loan Documents is true and correct in all material respects (except to the extent that such representation and warranty is subject to a materiality or Material Adverse Effect qualifier, in which case it shall be true and correct in all respects), in each case on and as of the date hereof as if made on and as of the date hereof, except to the extent that such representations and warranties relate to an earlier date, in which case such representations and warranties are true and correct in all material respects as of such earlier date (it being understood and agreed that the representations contained in clauses (a) and (b) of Section 5.05 of the Credit Agreement shall be deemed to refer to the most recent financial statements furnished pursuant to clauses (a) and (b) respectively of Section 6.01 of the Credit Agreement) and (g) no Default has occurred and is continuing as of the date hereof or would result after giving effect hereto.

7. Governing Law; Binding Effect. This Third Amendment shall be governed by and construed in accordance with the laws of the State of New York without regard to conflict of laws principles (other than Section 5-1401 of the General Obligations Law of New York) and shall be binding upon and inure to the benefit of the Borrowers, the Agents and the Lenders and their respective successors and assigns.

8. Counterparts. This Third Amendment may be executed in separate counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed a fully executed agreement. Any party hereto may execute and deliver a counterpart of this Third Amendment by delivering via facsimile or email transmission a signature page of this Third Amendment signed by such party, and any such facsimile or email signature shall be treated in all respects as having the same effect as an original signature. Any party delivering by facsimile or email transmission a counterpart executed by it shall promptly thereafter also deliver a manually signed counterpart of this Third Amendment.

9. Representations and Agreements of New Lenders. Each Increase Lender that prior to its execution hereof is not a Lender hereby (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Third

 

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Amendment and to consummate the transactions contemplated by this Third Amendment, the Credit Agreement and the other Loan Documents and to become a Lender under the Credit Agreement and the other Loan Documents, (ii) it meets all requirements to be an assignee under the Credit Agreement (subject to receipt of such consents as may be required under the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of its commitment to the Term Loan Increase, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to participate in credit facilities of the type represented by the Term Loan Increase and either it, or the person exercising discretion in making its decision to participate in the Term Loan Increase, is experienced with credit facilities of such type, (v) it has received a copy of the Credit Agreement, together with copies of the most recent financial statements delivered pursuant to Section 6.01 thereof and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Third Amendment and to commit to make a portion of the Term Loan Increase on the basis of which it has made such analysis and decision independently and without reliance on the Administrative Agent or any other Lender, and (vi) if it is a Foreign Lender, it has provided to the Administrative Agent duly completed and executed documentation required to be delivered by it pursuant to the terms of the Credit Agreement and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations that by the terms of the Loan Documents are required to be performed by it as a Lender.

10. Agreements Regarding Term A Loan Increase. By its execution hereof, each Increase Lender identified on Schedule I hereto hereby commits to provide a portion of the Term Loan Increase or the New Term Loan (as applicable) in the amount set forth opposite such Increase Lender’s name on Schedule I hereto on the Delayed Draw Borrowing Date (as defined in Annex A) subject to the conditions thereto as set forth in Annex A. Notwithstanding the foregoing, the commitment of each Increase Lender with respect to the Term Loan Increase or the New Term Loan (as applicable) shall terminate as of November 30, 2011 if the Delayed Draw Borrowing Date (as defined in Annex A) shall not have occurred prior to such date.

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be duly executed as of the date first above written.

 

Multi-Color Corporation

Third Amendment to Credit Agreement

Signature Page

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Multi-Color Corporation

Third Amendment to Credit Agreement

Signature Page

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Multi-Color Corporation

Third Amendment to Credit Agreement

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Multi-Color Corporation

Third Amendment to Credit Agreement

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Multi-Color Corporation

Third Amendment to Credit Agreement

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Multi-Color Corporation

Third Amendment to Credit Agreement

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Multi-Color Corporation

Third Amendment to Credit Agreement

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Multi-Color Corporation

Third Amendment to Credit Agreement

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Multi-Color Corporation

Third Amendment to Credit Agreement

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Multi-Color Corporation

Third Amendment to Credit Agreement

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Multi-Color Corporation

Third Amendment to Credit Agreement

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Multi-Color Corporation

Third Amendment to Credit Agreement

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Multi-Color Corporation

Third Amendment to Credit Agreement

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Multi-Color Corporation

Third Amendment to Credit Agreement

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Multi-Color Corporation

Third Amendment to Credit Agreement

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Multi-Color Corporation

Third Amendment to Credit Agreement

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Schedule I

Increase Lenders and Term Loan Increase Commitments

 

Increase Lender		Commitment with respect to Term Loan Increase or New Term Loan (as applicable)
Bank of America, N.A.		$	54,377,667.15
JPMorgan Chase Bank, N.A.		$	54,377,667.14
BMO Harris Financing, Inc.		$	34,054,054.05
Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland”, New York Branch		$	34,054,054.05
KeyBank National Association		$	34,054,054.05
PNC Bank, National Association		$	34,054,054.05
U.S. Bank National Association		$	23,837,837.84
Raymond James Bank, FSB		$	18,947,368.42
Branch Banking and Trust Company		$	17,027,027.03
FirstMerit Bank, N.A.		$	10,216,216.22
Total:		$	315,000,000.00

Schedule I to

Multi-Color Corporation

Third Amendment to Credit Agreement

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Annex A

Amended Credit Agreement

[See attached.]

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ANNEX A TO THIRD AMENDMENT TO CREDIT AGREEMENT

 

 

 

CREDIT AGREEMENT

Dated as of February 29, 2008, as amended June 28, 2010, as amended March 25, 2011 and

as amended August 26, 2011

among

MULTI-COLOR CORPORATION,

COLLOTYPE INTERNATIONAL HOLDINGS PTY LIMITED,

and

CERTAIN SUBSIDIARIES,

as Borrowers,

BANK OF AMERICA, N.A.,

as Administrative Agent, Swing Line Lender and U.S. L/C Issuer,

WESTPAC BANKING CORPORATION,

as Australian Administrative Agent and

Australian L/C Issuer,

BMO HARRIS FINANCING, INC.,

COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., “RABOBANK

NEDERLAND”, NEW YORK BRANCH,

KEYBANK NATIONAL ASSOCIATION

and

PNC BANK, NATIONAL ASSOCIATION,

as Co-Documentation Agents,

JPMORGAN CHASE BANK, N.A.,

as Syndication Agent,

and

The Other Lenders Party Hereto

and

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

and

J.P. MORGAN SECURITIES LLC,

as Joint Lead Arrangers and Joint Book Managers

 

 

 

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TABLE OF CONTENTS

 

Section				Page
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS					1
1.01		Defined Terms			1
1.02		Other Interpretive Provisions			32
1.03		Accounting Terms			33
1.04		Rounding			33
1.05		Spot Rates; Currency Equivalents			33
1.06		Times of Day			34
1.07		Letter of Credit Amounts			34
1.08		Code of Banking Practice (2003)			34
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS					34
2.01		Committed Loans			34
2.02		Borrowings, Conversions and Continuations of Committed Loans			35
2.03		Letters of Credit			37
2.04		Swing Line Loans			46
2.05		Prepayments			49
2.06		Termination or Reduction of Commitments			50
2.07		Repayment of Loans			50
2.08		Interest			52
2.09		Fees			53
2.10		Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate			54
2.11		Evidence of Debt			55
2.12		Payments Generally; Agents’ Clawback			55
2.13		Sharing of Payments by Lenders			57
2.14		Designated Borrowers			58
2.15		Increase in Commitments			59
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY					60
3.01		Taxes			60
3.02		Illegality			63
3.03		Inability to Determine Rates			63
3.04		Increased Costs; Reserves on Eurocurrency Rate Loans			64
3.05		Compensation for Losses			65
3.06		Mitigation Obligations; Replacement of Lenders			66
3.07		Survival			67
ARTICLE IV. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS					67
4.01		Conditions of Initial Credit Extension			67
4.02		Conditions to all Credit Extensions			71
4.03		Conditions of Credit Extension under Delayed Draw Sub-facility			72
ARTICLE V. REPRESENTATIONS AND WARRANTIES					77
5.01		Existence, Qualification and Power			77
5.02		Authorization; No Contravention			77
5.03		Governmental Authorization; Other Consents			77

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TABLE OF CONTENTS (continued)

 

Section				Page
5.04		Binding Effect			77
5.05		Financial Statements; No Material Adverse Effect			77
5.06		Litigation			78
5.07		No Default			79
5.08		Ownership of Property; Liens			79
5.09		Environmental Compliance			79
5.10		Insurance			79
5.11		Taxes			79
5.12		ERISA Compliance			80
5.13		Subsidiaries; Equity Interests			80
5.14		Margin Regulations; Investment Company Act			80
5.15		Disclosure			81
5.16		Compliance with Laws			81
5.17		Taxpayer Identification Number; Other Identifying Information			81
5.18		Intellectual Property; Licenses, Etc.			81
5.19		Representations as to Foreign Obligors			82
5.20		Solvency			82
5.21		Related Agreements			83
5.22		Existing Australian Charges			84
ARTICLE VI. AFFIRMATIVE COVENANTS					84
6.01		Financial Statements			84
6.02		Certificates; Other Information			85
6.03		Notices			87
6.04		Payment of Obligations			87
6.05		Preservation of Existence, Etc.			88
6.06		Maintenance of Properties			88
6.07		Maintenance of Insurance			88
6.08		Compliance with Laws			88
6.09		Books and Records			88
6.10		Inspection Rights			89
6.11		Use of Proceeds			89
6.12		Approvals and Authorizations			90
6.13		Additional Subsidiary Guarantors; Real Property			90
6.14		Environmental Matters			91
6.15		Designation of Australian Borrower; Satisfaction of Conditions Precedent			92
6.16		Further Assurances			92
ARTICLE VII. NEGATIVE COVENANTS					92
7.01		Liens			92
7.02		Investments			94
7.03		Indebtedness			95
7.04		Fundamental Changes			96
7.05		Dispositions			99
7.06		Restricted Payments			100
7.07		Change in Nature of Business			101
7.08		Transactions with Affiliates			101
7.09		Burdensome Agreements			101
7.10		Use of Proceeds			101
7.11		Financial Covenants			101

 

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TABLE OF CONTENTS (continued)

 

Section				Page
7.12		Capital Expenditures			102
7.13		Modification of Certain Documents			103
7.14		Cancellation of Debt			103
ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES					104
8.01		Events of Default			104
8.02		Remedies Upon Event of Default			106
8.03		Application of Funds			106
ARTICLE IX. AGENTS					107
9.01		Appointment and Authority			107
9.02		Rights as a Lender			108
9.03		Exculpatory Provisions			108
9.04		Reliance by Agents			109
9.05		Delegation of Duties			109
9.06		Resignation of an Agent			109
9.07		Non-Reliance on Agents and Other Lenders			110
9.08		No Other Duties, Etc.			111
9.09		Agents May File Proofs of Claim			111
9.10		Collateral and Guaranty Matters			111
ARTICLE X. MISCELLANEOUS					112
10.01		Amendments, Etc.			112
10.02		Notices; Effectiveness; Electronic Communication			114
10.03		No Waiver; Cumulative Remedies			116
10.04		Expenses; Indemnity; Damage Waiver			116
10.05		Payments Set Aside			118
10.06		Successors and Assigns			118
10.07		Treatment of Certain Information; Confidentiality			122
10.08		Right of Setoff			123
10.09		Interest Rate Limitation			123
10.10		Counterparts; Integration; Effectiveness			124
10.11		Survival of Representations and Warranties			124
10.12		Severability			124
10.13		Replacement of Lenders			124
10.14		Governing Law; Jurisdiction; Etc.			125
10.15		Waiver of Jury Trial			126
10.16		No Advisory or Fiduciary Responsibility			126
10.17		USA PATRIOT Act Notice			127
10.18		Judgment Currency			127
10.19		Facility Allocation Mechanism			128
10.20		Limitations of Liability			131
10.21		Stamp Duties and GST			131
10.22		Other Acknowledgements			132

 

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SCHEDULES

 

1.01		Mandatory Cost Formulae
2.01		Commitments and Applicable Percentages
2.03		Existing Letters of Credit
5.06		Litigation
5.09		Environmental Matters
5.11		Taxes
5.13		Subsidiaries; Other Equity Investments
5.17		Identification Numbers for Designated Borrowers that are Foreign Subsidiaries
5.18		Intellectual Property Matters
7.01		Existing Liens
7.03		Existing Indebtedness
7.03(i)		Adhesion Acquisition Acquired Indebtedness
10.02		Agents’ Offices; Certain Addresses for Notices

EXHIBITS

 

		Form of
A		Committed Loan Notice
B		Swing Line Loan Notice
C-1		Term A Loan Note
C-2		U.S. Revolving Loan Note
C-3		Australian Revolving Loan Note
C-4		Swing Line Note
D		Compliance Certificate
E		Assignment and Assumption
F		U.S. Guaranty and Collateral Agreement
G		Australian Deed of Guarantee and Indemnity
H		Designated Borrower Request and Assumption Agreement
I		Designated Borrower Notice
J		Opinion Matters
K		Australian Verification Certificate

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CREDIT AGREEMENT

This CREDIT AGREEMENT (“Agreement”) was originally entered into as of February 29, 2008, amended as of June 28, 2010 pursuant to that certain First Amendment to Credit Agreement, amended as of March 25, 2011 pursuant to that certain Second Amendment to Credit Agreement and is now further amended in the form hereof as of August 26, 2011, among MULTI-COLOR CORPORATION, an Ohio corporation (the “Company”), COLLOTYPE INTERNATIONAL HOLDINGS PTY LIMITED, an Australian company limited by shares and registered in South Australia (the “Australian Borrower”), certain Subsidiaries of the Company party hereto pursuant to Section 2.14 (each a “Designated Borrower” and, together with the Company and the Australian Borrower, the “Borrowers” and, each, a “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), BANK OF AMERICA, N.A., as Administrative Agent, Swing Line Lender and U.S. L/C Issuer, WESTPAC BANKING CORPORATION, as Australian Administrative Agent and Australian L/C Issuer, BMO HARRIS FINANCING, INC., COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK BA., “RABOBANK NEDERLAND”, NEW YORK BRANCH, KEYBANK NATIONAL ASSOCIATION and PNC BANK, NATIONAL ASSOCIATION, as Co-Documentation Agents and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED and J.P. MORGAN SECURITIES LLC, as Joint Lead Arrangers and Joint Book Managers.

The Company has requested that the Lenders provide a revolving credit (which includes letters of credit) and term loan facility and the Lenders are willing to do so on the terms and conditions set forth herein.

In consideration of the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

ARTICLE I.

DEFINITIONS AND ACCOUNTING TERMS

1.01 Defined Terms.

As used in this Agreement, the following terms shall have the meanings set forth below:

“Account Debtor” has the meaning set forth in the U.S. Guaranty and Collateral Agreement.

“Acquired Indebtedness” means Indebtedness of a Person existing at the time such Person became a Subsidiary or assumed by the Company or a Subsidiary of the Company pursuant to a Permitted Acquisition or the Adhesion Acquisition (and not created or incurred in connection with or in anticipation of such Permitted Acquisition or the Adhesion Acquisition, as applicable) which is otherwise permitted by the terms of this Agreement.

“Acquisition” means the Company’s direct and indirect acquisition of 100% of the outstanding capital stock of Collotype International Holdings Pty Limited and other related entities in accordance with the terms of the Acquisition Documentation.

“Acquisition Agreement” means the Share Sale and Purchase Agreement dated as of January 21, 2008 (as amended) by and among the CIH Vendors (as defined therein), the MD Vendors (as defined therein), Collotype International Holdings Pty Limited, Collotype Labels International Pty. Limited and the Company.

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“Acquisition Co. Srl” means Centro Stampa Holding S.r.l, a società a responsabilità limitata organized under the laws of Italy.

“Acquisition Documentation” means, collectively, the Acquisition Agreement and all schedules, exhibits and annexes thereto and all side letters and agreements affecting the terms thereof or entered into in connection therewith.

“Adhesion” means Adhesion Holdings, Inc., a Delaware corporation.

“Adhesion Acquisition” means the Company’s acquisition of Adhesion and its Subsidiaries from the shareholders thereof and of Adhesion’s interest in the Chilean JV through the merger of Adhesion with and into Newco and the acquisition of the remaining interest in the Chilean JV from the other shareholder thereof, in each case in accordance with the terms of the Adhesion Acquisition Documents.

“Adhesion Acquisition Agreement” means that certain Merger and Stock Purchase Agreement dated on or prior to the Delayed Draw Borrowing Date, by and among, inter alia, Adhesion, Diamond Castle Partners IV, L.P. as representative of the sellers of Adhesion, the Company, Newco and DLJ South American Partners, L.P.

“Adhesion Acquisition Documents” means, collectively, the Adhesion Acquisition Agreement and all schedules, exhibits and annexes thereto and all side letters and agreements affecting the terms thereof or entered into in connection therewith.

“Adhesion Transactions” means, collectively, the Adhesion Acquisition (including payment of all amounts in cash and equity and the repayment and termination of all outstanding Indebtedness of Adhesion and its Subsidiaries), the entering into of the Third Amendment, the making of extensions of credit under the Term A Loan and the Revolving Credit Facilities on the Delayed Draw Borrowing Date, the payment of costs and expenses related to any of the foregoing and all related transactions contemplated by this Agreement.

“Administrative Agent” means Bank of America in its capacity as Administrative Agent under any of the Loan Documents, or any successor Administrative Agent.

“Administrative Agent’s Office” means, with respect to any currency, the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address or account with respect to such currency as the Administrative Agent may from time to time notify to the Company and the Lenders.

“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

“Affiliate” means, with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified.

“Agents” means the Australian Administrative Agent and the Administrative Agent. The term “Agent”, however, shall not include the Co-Documentation Agents listed on the cover page hereof.

 

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“Aggregate Australian Revolving Commitments” means the aggregate amount of the Australian Revolving Commitments of each Australian Sub-facility Lender. The Aggregate Australian Revolving Commitments as of the Closing Date is Forty Million Dollars ($40,000,000).

“Aggregate Commitments” means the Commitments of all the Lenders.

Aggregate U.S. Revolving Commitment” means the aggregate amount of the U.S. Revolving Commitments of each U.S. Sub-facility Lender with a U.S. Revolving Commitment. The Aggregate U.S. Revolving Commitments as of the First Amendment Effective Date is One Hundred Thirty Million Dollars ($130,000,000).

“Agreement” means this Credit Agreement.

“Alternative Currency” means Euro and each other currency (other than Dollars) that is approved by each of the U.S. Sub-facility Lenders with a U.S. Revolving Commitment from time to time subsequent to the Third Amendment Effective Date.

“Alternative Currency Equivalent” means, at any time, with respect to any amount denominated in Dollars, the equivalent amount thereof in the applicable Alternative Currency as determined by the Administrative Agent or the L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of such Alternative Currency with Dollars.

“Alternative Currency Sublimit” means an amount equal to the lesser of the Aggregate Commitments and $50,000,000. The Alternative Currency Sublimit is part of, and not in addition to, the Aggregate Commitments.

“Applicable Percentage” means (i) with respect to any U.S. Sub-facility Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate U.S. Revolving Commitments, if any, represented by such Lender’s Commitment at such time, and (ii) with respect to any Australian Sub-facility Lender at any time, the percentage (carried out to the ninth decimal place) of the Aggregate Australian Revolving Commitments represented by such Lender’s Commitment at such time. If the commitment of each Lender to make Loans and the obligation of each L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section 8.02 or if the Aggregate Commitments have expired, then the Applicable Percentage of each Lender shall be determined based on the Applicable Percentage of such Lender most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender is set forth opposite the name of such Lender on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

 

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“Applicable Rate” means the following percentages per annum, based upon the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 6.02(b):

 

Applicable Rate
Pricing Level		Consolidated Leverage Ratio		Applicable Margin for Eurocurrency Rate Loans/ BBSY Loans/Letter of Credit Fees				Applicable Margin for Base Rate Loans				Commitment Fee
1		> 3.25			3.50	%			2.50	%			0.50	%
2		> 2.75 but < 3.25			3.00	%			2.00	%			0.45	%
3		> 2.25 but < 2.75			2.50	%			1.50	%			0.40	%
4		< 2.25			2.00	%			1.00	%			0.35	%

Any increase or decrease in the Applicable Rate resulting from a change in the Consolidated Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(b); provided, however, that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 1 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered. The Applicable Rate in effect from the Third Amendment Effective Date through the date on which the Compliance Certificate with respect to the fiscal quarter ending December 31, 2011 is delivered (or required to be delivered pursuant to Section 6.02(b)) shall be determined based upon Pricing Level 1. Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section 2.10(b).

“Applicable Time” means, with respect to any borrowings and payments in Australian Dollars or the Alternative Currency, the local time in the place of settlement for such Australian Dollars or Alternative Currency as may be determined by the Australian Administrative Agent, the Australian L/C Issuer, the Administrative Agent or the U.S. L/C Issuer, as the case may be, to be necessary for timely settlement on the relevant date in accordance with normal banking procedures in the place of payment.

“Applicant Borrower” has the meaning specified in Section 2.14.

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“Arranger” means Banc of America Securities LLC, in its capacity as sole lead arranger and sole book manager.

“Assignee Group” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

 

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“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.06(b)), and accepted by the applicable Agent, in substantially the form of Exhibit E or any other form approved by the applicable Agent.

“Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.

“Audited Financial Statements” means the audited consolidated balance sheet of the Company and its Subsidiaries as of such date for the fiscal year ended March 31, 2010, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Company and such Subsidiaries, including the notes thereto.

“Australian Administrative Agent” means Westpac in its capacity as Australian administrative agent under any of the Loan Documents, or any successor Australian Administrative Agent.

“Australian Administrative Agent’s Office” means, with respect to any currency, the Australian Administrative Agent’s address and, as appropriate, account as set forth on Schedule 10.02 with respect to such currency, or such other address or account with respect to such currency as the Australian Administrative Agent may from time to time notify to the Company and the Lenders.

“Australian Borrower” has the meaning set forth in the preamble hereto.

“Australian Collateral” means “Mortgaged Property” as defined in the Australian Deed of Guarantee and Indemnity.

“Australian Deed of Guarantee and Indemnity” means the Deed of Guarantee and Indemnity executed and delivered by certain Subsidiaries of the Company incorporated under the Laws of Australia in favor of the Australian Administrative Agent in its own capacity and as agent for the Australian Sub-facility Lenders, substantially in the form of Exhibit G.

“Australian Dollar” and “AUD” mean lawful money of Australia.

“Australian L/C Advance” means, with respect to each Australian Sub-facility Lender, such Australian Sub-facility Lender’s funding of its participation in any Australian L/C Borrowing in accordance with its Applicable Percentage. All Australian L/C Advances shall be denominated in Australian Dollars.

“Australian L/C Borrowing” means an extension of credit resulting from a drawing under any Australian Letter of Credit which has not been reimbursed on the date when made or refinanced as a Committed Borrowing. All Australian L/C Borrowings shall be denominated in Australian Dollars.

 

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“Australian L/C Issuer” means Westpac in its capacity as issuer of Australian Letters of Credit hereunder, or any successor issuer of Australian Letters of Credit hereunder.

“Australian L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Australian Letters of Credit plus the aggregate of all Unreimbursed Amounts in relation to all outstanding Australian Letters of Credit, including all Australian L/C Borrowings. For the purposes of computing the amount available to be drawn under any Australian Letter of Credit, the amount of such Australian Letter of Credit shall be determined in accordance with Section 1.07. For all purposes of this Agreement, if on any date of determination an Australian Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Australian Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

“Australian Letter of Credit” means any letter of credit issued hereunder by the Australian L/C Issuer and shall include the applicable Existing Letters of Credit. An Australian Letter of Credit may be a commercial letter of credit or a standby letter of credit. Australian Letters of Credit shall be issued in Australian Dollars.

“Australian Letter of Credit Sublimit” means an amount equal to $10,000,000. The Australian Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.

“Australian Revolving Commitment” means, as to any Australian Sub-facility Lender, the obligation of such Lender, if any, to make Australian Revolving Loans and participate in Australian Letters of Credit, in an aggregate principal and/or face amount not to exceed the amount set forth under the heading “Australian Revolving Commitment” under such Lender’s name on Schedule 2.01 or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof.

“Australian Revolving Loan” has the meaning specified in Section 2.01(c).

“Australian Security Documents” means, collectively, (a) the Australian Deed of Guarantee and Indemnity in the form of Exhibit G, (b) a share mortgage executed and delivered by the Company in favor of the Administrative Agent in its own capacity and as agent for the Australian Administrative Agent in its own capacity and the Lenders in respect of 66% of the share capital in Multi-Color Australia Holdings Pty Limited, (c) a share pledge executed and delivered by Multi-Color Australia Acquisition Pty Limited in favor of the Australian Administrative Agent in its own capacity and as agent for the Australian Sub-facility Lenders in respect of the entire share capital of Multi-Color Australia LLC, (d) a share mortgage executed and delivered by Multi-Color Australia LLC in favor of the Australian Administrative Agent in its own capacity and as agent for the Australian Sub-facility Lenders in respect of the entire share capital in Magnus Donners Pty Limited (ACN 008 102 207) and the share capital in Collotype International Holdings Pty Limited (ACN 007 625 015) held by Multi-Color Australia LLC from time to time, (e) a deed of charge executed and delivered by Multi-Color Australia Holdings Pty Limited, Multi-Color Australia Finance Pty Limited and Multi-Color Australia Acquisition Pty Limited in favor of the Australian Administrative Agent in its own capacity and as agent for the Australian Sub-facility Lenders, (f) a lien executed and delivered by Multi-Color Australia LLC in favor of the Australian Administrative Agent in its own capacity and as agent for the Australian Sub-facility Lenders, (g) a fixed and floating charge dated May 7, 2002 executed and delivered by Collotype Services Pty Limited (ACN 007 628 015)

 

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(now known as Collotype International Holdings Pty Limited) in favor of Westpac with Australian Securities and Investments Commission Charge Number 861224, (h) a fixed and floating charge dated August 23, 2006 executed and delivered by Barossa Printmasters Pty Limited (ACN 008 512 539) in favor of Westpac with Australian Securities and Investments Commission Charge Number 1349772, (i) a fixed and floating charge dated August 26, 2003 executed and delivered by Collotype Labels International Pty Limited (ACN 068 407 478) in favor of Westpac with Australian Securities and Investments Commission Charge Number 973294, (j) a fixed and floating charge dated August 26, 2003 executed and delivered by Collotype BSM Labels Pty Limited (ACN 007 665 189) in favor of Westpac with Australian Securities and Investments Commission Charge Number 973295), (k) a fixed and floating charge dated May 7, 2003 executed and delivered by Colourcraft Labels Pty Limited (ACN 003 411 194) in favor of Westpac with Australian Securities and Investments Commission Charge Number 949912, (l) a fixed and floating charge dated August 23, 2006 executed and delivered by Nationwide Labelling Pty Limited (ACN 120 050 204) (now known as Nationwide Labels Pty Limited) in favor of Westpac with Australian Securities and Investments Commission Charge Number 1349773, (m) a deed of charge to be executed and delivered by Magnus Donners Pty Limited (ACN 008 102 207), Collotype Labels Pty Limited (ACN 007 514 856), Collotype iPack Pty Limited (ACN 120 050 160) and Ever-Redi Press Pty Limited (ACN 115 294 267) in favor of the Australian Administrative Agent in its own capacity and as agent for the Australian Sub-facility Lenders in accordance with Section 6.15, (n) a share mortgage to be executed and delivered by Collotype Labels International Pty Limited (ACN 068 409 478) in favor of the Australian Administrative Agent in its own capacity and as agent for the Australian Sub-facility Lenders in respect of the entire share capital in Collotype Labels International (RSA) Pty Limited in accordance with Section 6.16, (o) a debenture dated September 14, 1953 executed and delivered by The Collotype Limited (ACN 007 514 856) (now known as Collotype Labels Pty Limited) in favour of Westpac with Australian Securities Investments Commission charge number 389826) and (p) all other documents delivered to the Australian Administrative Agent granting or perfecting a Lien on the property of any Person for the benefit of the Australian Sub-facility Lenders, including, without limitation, all financing statements filed in connection therewith, any intellectual property security agreements, blocked account agreements or control agreements that may be required to be delivered pursuant to this Agreement or any other Loan Document with respect to such property, and all other security documents hereafter delivered to the Australian Administrative Agent granting or perfecting a Lien on such property of any Person to secure the obligations and liabilities of any applicable Loan Party which is incorporated under the laws of Australia under any Loan Document.

“Australian Sub-facility” means, collectively, the Australian Revolving Loans and the Australian Letters of Credit.

“Australian Sub-facility Lender” means each Lender that has an Australian Revolving Commitment.

“Availability Period” means the period from and including the Closing Date to the earliest of (a) the Maturity Date, (b) the date of termination of the Aggregate Commitments pursuant to Section 2.06, and (c) the date of termination of the commitment of each Lender to make Loans and of the obligation of the L/C Issuers to make L/C Credit Extensions pursuant to Section 8.02.

“Bank of America” means Bank of America, N.A. and its successors.

 

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“Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1% (0.50%), (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate” and (c) the Eurocurrency Rate plus 1%. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

“Base Rate Committed Loan” means a Committed Loan that is a Base Rate Loan.

“Base Rate Loan” means a Loan that bears interest based on the Base Rate. All Base Rate Loans shall be denominated in Dollars.

“BBSY Committed Loan” means a Committed Loan that is a BBSY Loan.

“BBSY Loan” means a Loan that bears interest based on the BBSY Rate. All BBSY Loans shall be denominated in Australian Dollars.

“BBSY Rate” means the average Bank Bill Swap Bid Rate displayed at or about 10:30am, Sydney, Australia time on the applicable rate set date on the Reuters screen BBSY page for a term equivalent to the applicable Interest Period. If (i) for any reason that rate is not displayed for a term equivalent to that period, or (ii) the basis on which that rate is displayed is changed and in the opinion of the Australian Administrative Agent it ceases to reflect the Australian Sub-facility Lenders’ cost of funding to the same extent as at the date of this Agreement, then BBSY Rate will be the rate determined by the Australian Administrative Agent to be the average of the buying rates quoted to the Australian Administrative Agent by 3 Australian banks selected by the Australian Administrative Agent at or about that time on that date. The buying rates must be for bills of exchange accepted by an Australian bank and which have a term equivalent to the period. If there are no buying rates the rate will be the rate determined by the Australian Administrative Agent to be its cost of funds.

“Borrower” and “Borrowers” each has the meaning specified in the introductory paragraph hereto.

“Borrower Materials” has the meaning specified in Section 6.02.

“Borrowing” means a Committed Borrowing or a Swing Line Borrowing, as the context may require.

“Business Day” means (i) any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located with respect to Obligations denominated in Dollars or an Alternative Currency, (ii) where the Australian Administrative Agent’s Office is located with respect to Obligations denominated in Australian Dollars, and (iii) if such day relates to any interest rate settings as to a Eurocurrency Rate Loan denominated in Dollars, any fundings, disbursements, settlements and payments in Dollars in respect of any such Eurocurrency Rate Loan, or any other dealings in Dollars to be carried out pursuant to this Agreement in respect of any such Eurocurrency Rate Loan, means any such

 

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day on which dealings in deposits in Dollars are conducted by and between banks in the London interbank eurodollar market.

“Cash Collateralize” has the meaning specified in Section 2.03(g).

“Cash Management Agreement” means any agreement to provide cash management services, including treasury, depository, overdraft, credit or debit card, purchasing card, electronic funds transfer and other cash management arrangements.

“Cash Management Bank” means any Person that, at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Cash Management Agreement.

“Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority.

“Change of Control” means an event or series of events by which:

(a) any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of 40% or more of the equity securities of the Company entitled to vote for members of the board of directors or equivalent governing body of the Company on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right);

(b) during any period of 24 consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Company cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body (excluding, in the case of both clause (ii) and clause (iii), any individual whose initial nomination for, or assumption of office as, a member of that board or equivalent governing body occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors); or

 

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(c) any Person or two or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Company, or control over the equity securities of the Company entitled to vote for members of the board of directors or equivalent governing body of the Company on a fully-diluted basis (and taking into account all such securities that such Person or group has the right to acquire pursuant to any option right) representing 40% or more of the combined voting power of such securities.

“Chilean JV” means CM Holdings Ltd., an exempted company incorporated under the laws of the Cayman Islands.

“Chilean JV Acquisition Payment” means the payment of the purchase price for the Chilean JV in connection with the Adhesion Acquisition, which may be paid, in cash, at a date after the Delayed Draw Borrowing Date.

“Closing Date” means the first date all the conditions precedent in Section 4.01 are satisfied or waived in accordance with Section 10.01.

“Code” means the Internal Revenue Code of 1986, as amended.

“Collateral” means the U.S. Collateral and the Australian Collateral.

“Commitment” means, as to each Lender, its obligation to (a) make Committed Loans to the Borrowers pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the Dollar amount set forth opposite such Lender’s name on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement.

“Committed Borrowing” means a borrowing consisting of simultaneous Committed Loans of the same Type, in the same currency and, in the case of Eurocurrency Rate Loans or BBSY Loans, having the same Interest Period made by each of the applicable Lenders pursuant to Section 2.01.

“Committed Loan” has the meaning specified in Section 2.01(c).

“Committed Loan Notice” means a notice of (a) a Committed Borrowing, (b) a conversion of Committed Loans from one Type to the other, or (c) a continuation of Eurocurrency Rate Loans or BBSY Loans, pursuant to Section 2.02(a), which, if in writing, shall be substantially in the form of Exhibit A.

“Company” has the meaning specified in the introductory paragraph hereto.

“Compliance Certificate” means a certificate substantially in the form of Exhibit D.

“Computation Period” means, (i) for the period ending March 31, 2008, the three months then ended, (ii) for the period ending June 30, 2008, the six months then ended, (iii) for the period ending

 

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September 30, 2008, the nine months then ended, (iv) for the period ending December 31, 2008, the twelve months then ended, and (v) for all other periods, the four fiscal quarters most recently ended.

“Consolidated EBITDA” means, for any period, for the Company and its Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income for such period plus (a) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income taxes payable by the Company and its Subsidiaries for such period, (iii) depreciation and amortization expense, (iv) stock option expense under F.A.S. 123R for such period, (v) acquisition costs and expenses under F.A.S. 141 for such period, including professional, attorney’s and other fees related to the Acquisition, the Adhesion Acquisition and Permitted Acquisitions to the extent such costs and expenses are approved by the Administrative Agent, (vi) adjustments relating to the Acquisition, the Adhesion Acquisition and Permitted Acquisitions to the extent such adjustments are approved by the Administrative Agent; provided that it is acknowledged and agreed that the amount of such adjustment with respect to the Adhesion Acquisition (A) for the Computation Period ending December 31, 2011 shall be $10,800,000, (B) for the Computation Period ending March 31, 2012 shall be $10,800,000, (C) for the Computation Period ending June 30, 2012 shall be $8,100,000, (D) for the Computation Period ending September 30, 2012 shall be $5,400,000 and (E) for each Computation Period thereafter shall be $0; provided, further, however, that in no event shall the amount of such adjustment in any single Computation Period with respect to the Adhesion Acquisition exceed $10,800,000, (vii) actual non-recurring expenses incurred in connection with the Adhesion Acquisition as set forth in the Company’s Compliance Certificate delivered in accordance with Section 6.02(b) for such period; provided that in no event shall such non-recurring expenses exceed (A) $10,811,000 for any Computation Period ending at any time during the period from the Delayed Draw Borrowing Date through June 30, 2012, (B) $900,000 for any Computation Period ending at any time during the period beginning July 1, 2012 through March 31, 2013 or (C) $400,000 for any Computation Period ending at any time during the period beginning April 1, 2013 through March 31, 2014; provided, further, however, that no such non-recurring expenses shall be added back for any Computation Period ending after March 31, 2014, and (viii) other non-recurring expenses of the Company and its Subsidiaries reducing such Consolidated Net Income which do not represent a cash item in such period or any future period and minus (b) the following to the extent included in calculating such Consolidated Net Income: (i) Federal, state, local and foreign income tax credits of the Company and its Subsidiaries for such period and (ii) all non-recurring non-cash items increasing Consolidated Net Income for such period. For the avoidance of doubt, Consolidated EBITDA for any applicable period of determination shall be calculated on a pro forma basis to include the Consolidated EBITDA attributable to any Person, business or line of business acquired during such period pursuant to the Adhesion Acquisition or any Permitted Acquisition and to exclude the Consolidated EBITDA attributable to any Person, business or line of business sold or disposed of during such period, in each case as if such acquisition, sale or disposition, as the case may be, occurred on the first day of the applicable period for which Consolidated EBITDA is being calculated.

“Consolidated Funded Indebtedness” means, as of any date of determination, for the Company and its Subsidiaries on a consolidated basis, the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all purchase money Indebtedness, (c) all direct obligations consisting of the drawn amounts of letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business), (e) Attributable Indebtedness in

 

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respect of capital leases and Synthetic Lease Obligations, (f) without duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (e) above of Persons other than the Company or any Subsidiary, and (g) all Indebtedness of the types referred to in clauses (a) through (f) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which the Company or a Subsidiary is a general partner or joint venturer, unless such Indebtedness is expressly made non-recourse to the Company or such Subsidiary.

“Consolidated Interest Charges” means, for any period, for the Company and its Subsidiaries on a consolidated basis, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses of the Company and its Subsidiaries in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, and (b) the portion of rent expense of the Company and its Subsidiaries with respect to such period under capital leases that is treated as interest in accordance with GAAP.

“Consolidated Interest Coverage Ratio” means, as of the last day of any fiscal quarter of the Company, the ratio of (a) Consolidated EBITDA for the Computation Period to (b) Consolidated Interest Charges for such Computation Period; provided that, notwithstanding anything herein to the contrary, for purposes of determining Consolidated Interest Coverage Ratio for any date of determination of the Company during any of first three fiscal quarters ending after the Delayed Draw Borrowing Date, the determination of Consolidated Interest Charges shall be deemed to be the amount of (i) for the period ending on the last day of the first fiscal quarter ending after the Delayed Draw Borrowing Date, the amount of Consolidated Interest Charges for the fiscal quarter ending on such date times four (4); (ii) for the period ending on the last day of the second quarter ending after the Delayed Draw Borrowing Date, the amount of Consolidated Interest Charges for the two consecutive fiscal quarters ending on such date times two (2); and (iii) for the period ending on the last day of the third fiscal quarter ending after the Delayed Draw Borrowing Date, the amount of Consolidated Interest Charges for the three consecutive fiscal quarters ending on such date times 4/3.

“Consolidated Leverage Ratio” means, as of the last day of any fiscal quarter of the Company, the ratio of (a) Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for the Computation Period.

“Consolidated Net Income” means, for any period, for the Company and its Subsidiaries on a consolidated basis, the net income of the Company and its Subsidiaries (excluding extraordinary gains and extraordinary losses) for that period.

“Consolidated Net Worth” means, as of any date of determination, for the Company and its Subsidiaries on a consolidated basis, Shareholders’ Equity of the Company and its Subsidiaries on that date.

“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

 

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“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

“Credit Extension” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

“Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided, however, that with respect to a Eurocurrency Rate Loan or a BBSY Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate and any Mandatory Cost) otherwise applicable to such Loan plus 2% per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.

“Defaulting Lender” means any Lender that (a) has failed to fund any portion of the Committed Loans, participations in L/C Obligations or participations in Swing Line Loans required to be funded by it hereunder within one Business Day of the date required to be funded by it hereunder unless such failure has been cured, (b) has otherwise failed to pay over to the applicable Agent or any other Lender any other amount required to be paid by it hereunder within one Business Day of the date when due, unless the subject of a good faith dispute or unless such failure has been cured, or (c) has been deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.

“Delayed Draw Borrowing Date” means the date upon which all of the conditions to funding of the second draw of the Term A Loan set forth in Section 4.03 are satisfied (or waived by each U.S. Sub-facility Lender with a Term A Loan Commitment and the Administrative Agent).

“Delayed Draw Expiration Date” means the earliest to occur of (a) November 30, 2011, (b) the date of termination of the entire Term A Loan Commitment with respect to the Delayed Draw Sub-facility by the Company pursuant to Section 2.06(b), (c) the date of termination of the Term A Loan Commitment with respect to the Delayed Draw Sub-facility pursuant to Section 8.02(a) and (d) the Delayed Draw Borrowing Date (after giving effect to the funding of the Delayed Draw Sub-facility).

“Delayed Draw Sub-facility” has the meaning specified in Section 2.01(a)(i).

“Designated Borrower” has the meaning specified in the introductory paragraph hereto.

“Designated Borrower Notice” has the meaning specified in Section 2.14.

 

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“Designated Borrower Request and Assumption Agreement” has the meaning specified in Section 2.14.

“Disposition” or “Dispose” means the sale, transfer, license, lease or other disposition (including any sale and leaseback transaction, but excluding the grant of any Lien) of any property by any Person, including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.

“Dollar” and “$” mean lawful money of the United States.

“Dollar Equivalent” means, at any time, (a) with respect to any amount denominated in Dollars, such amount, (b) with respect to any amount denominated in an Alternative Currency, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the U.S. L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with such Alternative Currency, and (c) with respect to any amount denominated in Australian Dollars, the equivalent amount thereof in Dollars as determined by the Administrative Agent or the U.S. L/C Issuer, as the case may be, at such time on the basis of the Spot Rate (determined in respect of the most recent Revaluation Date) for the purchase of Dollars with Australian Dollars.

“Domestic Subsidiary” means any Subsidiary that is organized under the laws of any political subdivision of the United States. Notwithstanding the foregoing, Multi-Color Australia LLC shall be deemed not to be a Domestic Subsidiary.

“Dutch Security Documents” means (i) a notarial deed of pledge shares granted by Multi-Color Corporation over 66% of the shares of New Holdco BV1; and (ii) a notarial deed of pledge shares granted by New Holdco BV1 over 66% of the shares of New Holdco BV2.

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 10.06(b)(iii), (v), and (vi) (subject to such consents, if any, as may be required under Section 10.06(b)(iii)).

“EMU” means the economic and monetary union in accordance with the Treaty of Rome 1957, as amended by the Single European Act 1986, the Maastricht Treaty of 1992 and the Amsterdam Treaty of 1998.

“EMU Legislation” means the legislative measures of the European Council for the introduction of, changeover to or operation of a single or unified European currency.

“Environmental Laws” means any and all Federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including those related to hazardous substances or wastes, air emissions and discharges to waste or public systems.

“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Company, any other

 

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Loan Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination.

“ERISA” means the Employee Retirement Income Security Act of 1974.

“ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Company within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by the Company or any ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is in reorganization; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon the Company or any ERISA Affiliate.

“Euro” and “EUR” mean the lawful currency of the Participating Member States introduced in accordance with the EMU Legislation.

“Eurocurrency Base Rate” has the meaning specified in the definition of Eurocurrency Rate.

 

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“Eurocurrency Rate” means for any Interest Period with respect to a Eurocurrency Rate Loan, a rate per annum determined by the Administrative Agent pursuant to the following formula:

 

Eurocurrency Rate =		Eurocurrency Base Rate
		1.00 – Eurocurrency Reserve Percentage

Where,

“Eurocurrency Base Rate” means,

(a) with respect to any Eurocurrency Rate Loan for such Interest Period, the rate per annum equal to the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in the relevant currency (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period. If such rate is not available at such time for any reason, then the “Eurocurrency Base Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in the relevant currency for delivery on the first day of such Interest Period in Same Day Funds in the approximate amount of the Eurocurrency Rate Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch (or other Bank of America branch or Affiliate) to major banks in the London or other offshore interbank market for such currency at their request at approximately 11:00 a.m. (London time) two Business Days prior to the commencement of such Interest Period; and

(b) with respect to any Base Rate Loan, the BBA LIBOR, as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for deposits in Dollars delivered in the London interbank market for a term of one month commencing that day. If such rate is not available at such time for any reason, then the “Eurocurrency Base Rate” for such Base Rate Loan shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in Same Day Funds in the approximate amount of the Base Rate Loan being made, continued or converted by Bank of America and with a term equivalent to one month would be offered by Bank of America’s London Branch (or other Bank of America branch or Affiliate) to major banks in the London or other offshore interbank market for Dollars at their request at the date and time of determination.

“Eurocurrency Reserve Percentage” means, for any day during any Interest Period, the reserve percentage (expressed as a decimal, carried out to five decimal places) in effect on such day, whether or not applicable to any Lender, under regulations issued from time to time by the FRB for determining the maximum reserve requirement (including any emergency, supplemental or other marginal reserve requirement) with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”). The Eurocurrency Rate for each outstanding Eurocurrency Rate Loan shall be adjusted automatically as of the effective date of any change in the Eurocurrency Reserve Percentage.

 

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“Eurocurrency Rate Loan” means a Committed Loan that bears interest at a rate based on the Eurocurrency Rate. Eurocurrency Rate Loans may be denominated in Dollars or in an Alternative Currency. All Committed Loans denominated in an Alternative Currency must be Eurocurrency Rate Loans.

“Event of Default” has the meaning specified in Section 8.01.

“Excluded Kansas City Property” means that certain real property located in Kansas City, Missouri in which Adhesion and/or one of Adhesion’s Subsidiaries has a fee simple ownership interest.

“Excluded Taxes” means, with respect to either Agent, any Lender, either L/C Issuer or any other recipient of any payment to be made by or on account of any obligation of any Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), in each case by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction described in clause (a), above and (c) except as provided in the following sentence, in the case of a Foreign Lender (other than an assignee pursuant to a request by the Company under Section 10.13), any withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with Section 3.01(e), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the applicable Borrower with respect to such withholding tax pursuant to Section 3.01(a). Notwithstanding anything to the contrary contained in this definition, “Excluded Taxes” shall not include (i) any withholding tax imposed at any time on payments made by or on behalf of a Foreign Obligor organized under the laws of Australia to any Lender hereunder or under any other Loan Document, or (ii) any withholding tax imposed at any time on payments made by or on behalf of any other Foreign Obligor to any Existing U.S. Sub-facility Lender hereunder or under any other Loan Document, provided, in each case, that such Lender shall have complied with the last paragraph of Section 3.01(e).

“Existing Australian Charges” means, collectively, (i) registered charge no. 303248 dated January 19, 1965 granted by Collotype International Holdings Pty Limited in favor of Australasian Finance Co. Proprietary Ltd ACN 007 562 281 (which originally had South Australian Company Number (SA) C0006333M and was subsequently known as Deckert & Roney Pty Limited before being deregistered) and (ii) registered charge no. 303249 dated June 24, 1965 granted by Collotype International Holdings Pty Limited in favor of SABCo Limited ACN 007 870 475 (which originally had South Australian Company Number (SA) C0043695M).

“Existing Credit Agreement” means that certain Credit Agreement dated as of May 15, 2007 among the Company, LaSalle Bank National Association, as administrative agent, and a syndicate of lenders.

“Existing Letters of Credit” means letters of credit issued under and pursuant to the Existing Credit Agreement and outstanding as of the Closing Date as set forth on Schedule 2.03.

 

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“Existing U.S. Sub-facility Lender” means a lender that is a U.S. Sub-facility Lender as of the First Amendment Effective Date.

“Facilities” means, collectively, the Australian Sub-facility and the U.S. Sub-facility, each being a “Facility”.

“FAM” shall mean the mechanism for the allocation and exchange of interests in the Facilities and collections thereunder established under Section 10.19.

“FAM Dollar Lender” shall mean any Lender that has made or holds no Loans in Australian Dollars and has no Australian Revolving Commitments.

“FAM Exchange” shall mean the exchange of the Lender’s interests provided for in Section 10.19.

“FAM Exchange Date” shall mean the date on which (a) any event referred to in Section 8.01(f) shall occur in respect of the Company, the Australian Borrower or any other Loan Party, (b) an acceleration of the maturity of the Loans pursuant to Article VIII shall occur, (c) after the occurrence and during the continuance of an Event of Default, the Administrative Agent shall have been directed to exercise remedies on a material portion of the Collateral, or (d) a payment default shall occur with respect to payments due on the Maturity Date of any of the Facilities.

“FAM Percentage” shall mean, as to each Lender, a fraction, expressed as a decimal, of which (a) the numerator shall be the aggregate of the Specified Obligations owed to such Lender and such Lender’s participation in the then aggregate undrawn and unexpired amount of the Letters of Credit outstanding immediately prior to giving effect to the FAM Exchange and (b) the denominator shall be the aggregate of the Specified Obligations owed to all the Lenders and the then aggregate undrawn and unexpired amount of the Letters of Credit outstanding immediately prior to giving effect to the FAM Exchange. For purposes of computing each Lender’s FAM Percentage, all Specified Obligations and the then aggregate undrawn and unexpired amount of the then outstanding Letters of Credit which are denominated in Australian Dollars or an Alternative Currency shall be translated into Dollars at the Spot Rate in effect on the FAM Exchange Date.

“Federal Funds Rate” means, for any day, the rate per annum (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent.

“Fee Letter” means, collectively, (a) the letter agreement, dated December 7, 2007, among the Company, the Administrative Agent and the Arranger, (b) the letter agreement dated May 20, 2010

 

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among the Company, the Administrative Agent and the Arranger, and (c) the letter agreement dated August 13, 2011 among the Company, the Administrative Agent and the Joint Lead Arrangers.

“First Amendment Effective Date” means the “Effective Date” as defined in the First Amendment to Credit Agreement dated as of June 28, 2010.

“Foreign Lender” means, with respect to any Borrower, any Lender that is organized under the laws of a jurisdiction other than that in which such Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

“Foreign Obligor” means a Loan Party that is a Foreign Subsidiary.

“Foreign Subsidiary” means any Subsidiary that is organized under the laws of a jurisdiction other than the United States, a State thereof or the District of Columbia. Notwithstanding the foregoing, Multi-Color Australia LLC shall be deemed to be a Foreign Subsidiary.

“FRB” means the Board of Governors of the Federal Reserve System of the United States.

“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States and the Securities and Exchange Commission, that are applicable to the circumstances as of the date of determination, consistently applied.

“Governmental Authority” means the government of the United States, Australia or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“GST” means a goods and services, value added or similar tax.

“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such

 

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Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith. The term “Guarantee” as a verb has a corresponding meaning.

“Guaranty and Collateral Agreements” means the U.S. Guaranty and Collateral Agreement and the Australian Deed of Guarantee and Indemnity.

“Guidotti” means GuidottiCentroStampa S.p.A., a società per azioni organized under the laws of Italy.

“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

“Holdco Srl” means Multi-Color Italian Holding S.r.l, a società a responsabilità limitata organized under the laws of Italy.

“Immaterial First-Tier Foreign Subsidiary” means any Foreign Subsidiary that (a) is a direct wholly-owned Subsidiary of either the Company or a Domestic Subsidiary of the Company and (b) when measured on a combined basis with each of its Subsidiaries, taken as a whole, represents less than (i) 10.0% of Consolidated EBITDA of the Company and its Subsidiaries for the Computation Period most recently ended for which financial statements have been delivered under Section 6.01 and (ii) 10.0% of the consolidated total assets (determined in accordance with GAAP) of the Company and its Subsidiaries for the Computation Period most recently ended for which financial statements have been delivered under Section 6.01; provided that no Foreign Subsidiary that directly or indirectly owns a Borrower shall be deemed an Immaterial First-Tier Foreign Subsidiary.

“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;

(c) net obligations of such Person under any Swap Contract;

 

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(d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business and, in each case, not past due for more than 60 days;

(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

(f) capital leases and Synthetic Lease Obligations;

(g) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and

(h) all Guarantees of such Person in respect of any of the foregoing.

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any capital lease or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date.

“Indemnified Taxes” means Taxes other than Excluded Taxes.

“Indemnitees” has the meaning specified in Section 10.04(b).

“Information” has the meaning specified in Section 10.07.

“Interest Payment Date” means, (a) as to any Loan other than a Base Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date; provided, however, that if any Interest Period for a Eurocurrency Rate Loan or a BBSY Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan), the last Business Day of each March, June, September and December and the Maturity Date.

“Interest Period” means, as to each Eurocurrency Rate Loan and each BBSY Loan, the period commencing on the date such Eurocurrency Rate Loan or BBSY Loan is disbursed or converted to or continued as a Eurocurrency Rate Loan or BBSY Loan and ending on the date one, two, three or six months thereafter, as selected by the applicable Borrower in its Committed Loan Notice; provided that:

(i) any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

 

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(ii) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(iii) no Interest Period shall extend beyond the Maturity Date.

“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor Guarantees Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit. For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.

“IP Rights” has the meaning specified in Section 5.18.

“IRS” means the United States Internal Revenue Service.

“ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

“Issuer Documents” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the applicable L/C Issuer and the Company (or any Subsidiary) or in favor of such L/C Issuer and relating to such Letter of Credit.

“Italian Acquisition Agreement” means the Stock Purchase Agreement (as amended) by and among the Company, as “Buyer” and Paolo Guidotti, Giorgio Guidotti, Filippo Guidotti, Andrea Guidotti, Lucia Ramacciotti, and Giovanna Smaniotto as “Sellers”.

“Joint Lead Arrangers” means Merrill Lynch, Pierce, Fenner & Smith Incorporated and J.P. Morgan Securities LLC, in their capacities as joint lead arrangers and joint book managers.

“Laws” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

“L/C Advance” means an Australian L/C Advance or a U.S. L/C Advance.

“L/C Borrowings” means Australian L/C Borrowings and U.S. L/C Borrowings.

 

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“L/C Credit Extension” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.

“L/C Issuer” means, as the context requires, either the U.S. L/C Issuer or the Australian L/C Issuer.

“L/C Obligations” means the Australian L/C Obligations and the U.S. L/C Obligations.

“Lender” has the meaning specified in the introductory paragraph hereto and, as the context requires, includes the Swing Line Lender.

“Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Company and the applicable Agent.

“Letter of Credit” means any Australian Letter of Credit or U.S. Letter of Credit.

“Letter of Credit Application” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the applicable L/C Issuer.

“Letter of Credit Expiration Date” means the day that is seven days prior to the Maturity Date then in effect (or, if such day is not a Business Day, the next preceding Business Day).

“Letter of Credit Fee” has the meaning specified in Section 2.03(i).

“Letter of Credit Sublimit” means the aggregate of the Australian Letter of Credit Sublimit and the U.S. Letter of Credit Sublimit.

“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).

“Loan” means an extension of credit by a Lender to a Borrower under Article II in the form of a Committed Loan or a Swing Line Loan.

“Loan Documents” means this Agreement, each Designated Borrower Request and Assumption Agreement, each Note, each Issuer Document, the Fee Letter, the Australian Security Documents, the U.S. Security Documents, and the Dutch Security Documents.

“Loan Parties” means, collectively, the Company, the Australian Borrower, each Subsidiary Guarantor and each Designated Borrower.

“Mandatory Cost” means, with respect to any period, the percentage rate per annum determined in accordance with Schedule 1.01.

 

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“Mandatory Prepayment Event” has the meaning specified in Section 2.07(d).

“Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the operations, business, properties, liabilities (actual or contingent), condition (financial or otherwise) or prospects of the Company and its Subsidiaries taken as a whole; (b) a material impairment of the ability of the Loan Parties taken as a whole to perform their obligations under any Loan Document; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document to which it is a party.

“Material Real Property” means any single parcel or contiguous parcels of real property located in the United States in which a Loan Party has a fee simple ownership interest with a fair market value in excess of $2,500,000.

“Maturity Date” means the date that is five (5) years after the Third Amendment Effective Date; provided, however, that if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.

“Multiemployer Plan” means any employee benefit plan of the type described in Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes or is obligated to make contributions, or during the preceding five plan years, has made or been obligated to make contributions.

“Net Cash Proceeds” means:

(a) with respect to the sale of any asset by the Company or any Loan Party, the excess, if any, of (i) the sum of cash and cash equivalents received in connection with such sale (including any cash received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount of any Indebtedness that is required to be repaid in connection with the sale thereof (other than Indebtedness under the Loan Documents), (B) the out-of-pocket expenses (including Taxes) incurred by the Company or any Loan Party in connection with such sale (including taxes, sales commissions and legal, accounting and investment banking fees) and (C) income taxes reasonably estimated to be actually payable within two years of the date of the relevant asset sale as a result of any gain recognized in connection therewith;

(b) with respect to the sale of any capital stock or other equity interest by the Company, the excess of (i) the sum of the cash and cash equivalents received in connection with such sale over (ii) the underwriting discounts and commissions, and other out-of-pocket expenses (including taxes, sales commissions and legal, accounting and investment banking fees), incurred by the Company in connection with such sale;

(c) with respect to the issuance of any Indebtedness, the excess of (i) the sum of the cash received from such issuance over (ii) the direct costs of such issuance (including up-front, underwriters’ and placement fees and legal and accounting fees); and

(d) with respect to insurance proceeds, the sum of the cash received with respect to a claim on an insurance policy other than cash received for business interruption or a claim under an “errors and omissions” policy.

 

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“New Holdco BV1” means MCC Labels1 Netherlands BV, a besloten vennootschap organized under the laws of the Netherlands.

“New Holdco BV2” means MCC LABL2 Netherlands BV, a besloten vennootschap organized under the laws of the Netherlands.

“New Subsidiaries” means each of Newco and the Subsidiaries of Adhesion or Newco (other than any Foreign Subsidiaries of Adhesion or Newco).

“Newco” means M Acquisition, LLC, a Delaware limited liability company and wholly-owned Subsidiary of the Company organized under the laws of a state of the United States and formed to facilitate the Adhesion Acquisition.

“Note” means a promissory note made by a Borrower in favor of a Lender evidencing Loans made by such Lender to such Borrower, substantially in the form of Exhibit C-1, C-2, C-3 or C-4, as applicable.

“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan or Letter of Credit, Secured Cash Management Agreement or any Swap Contract approved by the Administrative Agent and incurred in favor of a Lender or an Affiliate thereof, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding.

“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

“Other Taxes” means all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any other Loan Document.

“Outstanding Amount” means (i) with respect to Committed Loans on any date, the Dollar Equivalent amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Committed Loans occurring on such date; (ii) with respect to Swing Line Loans on any date, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Swing Line Loans occurring on such date; and (iii) with respect to any L/C Obligations on any date, the Dollar Equivalent amount of the

 

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aggregate outstanding amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Company of Unreimbursed Amounts.

“Overnight Rate” means, for any day, (a) with respect to any amount denominated in Dollars, the greater of (i) the Federal Funds Rate and (ii) an overnight rate determined by the Administrative Agent, the L/C Issuer, or the Swing Line Lender, as the case may be, in accordance with banking industry rules on interbank compensation, and (b) with respect to any amount denominated in Australian Dollars or an Alternative Currency, the rate of interest per annum at which overnight deposits in Australian Dollars or the applicable Alternative Currency, as the case may be, in an amount approximately equal to the amount with respect to which such rate is being determined, would be offered for such day by a branch or Affiliate of Bank of America in the applicable offshore interbank market for such currency to major banks in such interbank market.

“Participant” has the meaning specified in Section 10.06(d).

“Participating Member State” means each state so described in any EMU Legislation.

“PBGC” means the Pension Benefit Guaranty Corporation.

“Pension Plan” means any “employee pension benefit plan” (as such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is subject to Title IV of ERISA and is sponsored or maintained by the Company or any ERISA Affiliate or to which the Company or any ERISA Affiliate contributes or has an obligation to contribute, or in the case of a multiple employer or other plan described in Section 4064(a) of ERISA, has made contributions at any time during the immediately preceding five plan years.

“Permitted Acquisition” means each acquisition that meets the criteria set forth in Section 7.04(c); provided, however, that the acquisition of Guidotti pursuant to the Italian Acquisition Agreement, and the intercompany transactions related thereto or entered into in connection therewith to provide for the funding of the purchase price therefore, shall be a Permitted Acquisition.

“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by the Company or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate.

“Platform” has the meaning specified in Section 6.02.

“Public Lender” has the meaning specified in Section 6.02.

“Register” has the meaning specified in Section 10.06(c).

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.

 

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“Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than events for which the 30 day notice period has been waived.

“Request for Credit Extension” means (a) with respect to a Borrowing, conversion or continuation of Committed Loans, a Committed Loan Notice, (b) with respect to an L/C Credit Extension, a Letter of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line Loan Notice.

“Required Lenders” means, as of any date of determination, Lenders having more than 50% of the Aggregate Commitments or, if the commitment of each Lender to make Loans and the obligation of the L/C Issuers to make L/C Credit Extensions have been terminated pursuant to Section 8.02, Lenders holding in the aggregate more than 50% of the Total Outstandings (with the aggregate amount of each Lender’s risk participation and funded participation in L/C Obligations and Swing Line Loans being deemed “held” by such Lender for purposes of this definition); provided that the Commitment of, and the portion of the Total Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

“Responsible Officer” means the chief executive officer, president, chief financial officer, treasurer, assistant treasurer or controller of a Loan Party and, solely for purposes of notices given pursuant to Article II, any other officer or employee of the applicable Loan Party so designated by any of the foregoing officers in a notice to the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

“Restricted Foreign Subsidiary” means each of Acquisition Co. Srl, Guidotti, Holdco Srl, New Holdco BV1, New Holdco BV2, and any Foreign Subsidiary created or acquired on or after the First Amendment Effective Date pursuant to the Adhesion Acquisition, a Permitted Acquisition or in connection with the Adhesion Acquisition or a Permitted Acquisition.

“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of the Company or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to the Company’s stockholders, partners or members (or the equivalent Person thereof).

“Revaluation Date” means (a) with respect to any Loan, each of the following: (i) each date of a Borrowing of a Eurocurrency Rate Loan denominated in an Alternative Currency, (ii) each date of a continuation of a Eurocurrency Rate Loan denominated in an Alternative Currency pursuant to Section 2.02, and (iii) such additional dates as the Administrative Agent shall determine or the Required Lenders shall require; and (b) with respect to any Letter of Credit, each of the following: (i) each date of issuance of a Letter of Credit denominated in Australian Dollars or in an Alternative Currency, (ii) each date of an amendment of any such Letter of Credit having the effect of increasing the amount thereof (solely with respect to the increased amount), (iii) each date of any payment by the L/C Issuer under any Letter of Credit denominated in Australian Dollars or in an Alternative Currency, and (iv) such additional dates as the Administrative Agent or the L/C Issuer shall determine or the Required Lenders shall require.

 

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“Revolving Credit Facilities” means the facilities under which U.S. Revolving Loans and the Australian Revolving Loans are provided.

“Revolving Loans” means collectively, the U.S. Revolving Loans and the Australian Revolving Loans.

“Same Day Funds” means (a) with respect to disbursements and payments in Dollars, immediately available funds, (b) with respect to disbursements and payments in an Alternative Currency, same day or other funds as may be determined by the Administrative Agent or the U.S. L/C Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in such Alternative Currency, and (c) with respect to disbursements and payments in Australian Dollars, same day or other funds as may be determined by the Administrative Agent or the U.S. L/C Issuer, as the case may be, to be customary in the place of disbursement or payment for the settlement of international banking transactions in Australian Dollars.

“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

“Secured Cash Management Agreement” means any Cash Management Agreement that is entered into by and between any Loan Party and any Cash Management Bank.

“Shareholders’ Equity” means, as of any date of determination, consolidated shareholders’ equity of the Company and its Subsidiaries as of that date determined in accordance with GAAP.

“Specified Obligations” means the Obligations consisting of (a) the principal of and interest on Loans and (b) reimbursement obligations in respect of Letters of Credit.

“Spot Rate” for a currency means the rate determined by the Administrative Agent or the U.S. L/C Issuer, as applicable, to be the rate quoted by the Person acting in such capacity as the spot rate for the purchase by such Person of such currency with another currency through its principal foreign exchange trading office at approximately 11:00 a.m. on the date two Business Days prior to the date as of which the foreign exchange computation is made; provided that the Administrative Agent or the U.S. L/C Issuer may obtain such spot rate from another financial institution designated by the Administrative Agent or the U.S. L/C Issuer if the Person acting in such capacity does not have as of the date of determination a spot buying rate for any such currency; and provided further that the U.S. L/C Issuer may use such spot rate quoted on the date as of which the foreign exchange computation is made in the case of any Letter of Credit denominated in Australian Dollars or an Alternative Currency.

“Subordinated Debt” means any unsecured Indebtedness of any Loan Party which has subordination terms, covenants, pricing and other terms which have been approved in writing by the applicable Agent.

“Subordination Agreements” means all subordination agreements executed by a holder of Subordinated Debt in favor of the applicable Agent and the applicable Lenders from time to time after the Closing Date in form and substance and on terms and conditions satisfactory to each of the Agents.

 

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“Subsidiary” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Company.

“Subsidiary Guarantors” means, collectively, each Subsidiary of the Company that is party to either Guaranty and Collateral Agreement.

“Swap Contract” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amount(s) determined as the mark-to-market value(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts (which may include a Lender or any Affiliate of a Lender).

“Swing Line Borrowing” means a borrowing of a Swing Line Loan pursuant to Section 2.04.

“Swing Line Lender” means Bank of America in its capacity as provider of Swing Line Loans, or any successor swing line lender hereunder.

“Swing Line Loan” has the meaning specified in Section 2.04(a).

“Swing Line Loan Notice” means a notice of a Swing Line Borrowing pursuant to Section 2.04(b), which, if in writing, shall be substantially in the form of Exhibit B.

“Swing Line Sublimit” means an amount equal to the lesser of (a) $15,000,000 and (b) the Aggregate U.S. Revolving Commitments. The Swing Line Sublimit is part of, and not in addition to, the Aggregate Commitments.

 

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“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings, assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Term A Loan” has the meaning specified in Section 2.01(a).

“Term A Loan Commitment” means, as to any U.S. Sub-facility Lender (a) for any period prior to the Third Amendment Effective Date, the obligation of such Lender, if any, to make Term A Loans, in an aggregate principal amount not to exceed the amount set forth under the heading “Term A Loan Commitment” under such Lender’s name on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender became a party hereto and (b) for any period on or after the Third Amendment Effective Date, the obligation, if any, of such Lender to make Term A Loans as set forth in Schedule I to the Third Amendment, or in an applicable Assignment and Assumption recorded in the Register, in each case, as the same may be changed from time to time pursuant to the terms hereof.

“Third Amendment” means the Third Amendment to Credit Agreement dated as of August 26, 2011.

“Third Amendment Effective Date” means the “Effective Date” as defined in the Third Amendment.

“Threshold Amount” means $10,000,000.

“Total Outstandings” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.

“Type” means, with respect to a Committed Loan, its character as a Base Rate Loan, Eurocurrency Rate Loan or BBSY Loan.

“Unfunded Pension Liability” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 412 of the Code for the applicable plan year.

“United States” and “U.S.” mean the United States of America.

“Unreimbursed Amount” has the meaning specified in Section 2.03(c)(i).

“U.S. Collateral” means “Collateral” as defined in the U.S. Guaranty and Collateral Agreement.

 

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“U.S. Guaranty and Collateral Agreement” means the Guaranty and Collateral Agreement executed and delivered by the Company and certain Subsidiaries of the Company in favor of the Agents and the Lenders, substantially in the form of Exhibit F.

“U.S. L/C Advance” means, with respect to each U.S. Sub-facility Lender with a U.S. Revolving Commitment, such U.S. Sub-facility Lender’s funding of its participation in any U.S. L/C Borrowing in accordance with its Applicable Percentage. All U.S. L/C Advances shall be denominated in Dollars or an Alternative Currency.

“U.S. L/C Borrowing” means an extension of credit resulting from a drawing under any U.S. Letter of Credit which has not been reimbursed on the date when made or refinanced as a Committed Borrowing. All U.S. L/C Borrowings shall be denominated in Dollars or an Alternative Currency.

“U.S. L/C Issuer” means Bank of America in its capacity as issuer of U.S. Letters of Credit hereunder, or any successor issuer of U.S. Letters of Credit hereunder.

“U.S. L/C Obligations” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding U.S. Letters of Credit plus the aggregate of all Unreimbursed Amounts in relation to all outstanding U.S. Letters of Credit, including all U.S. L/C Borrowings. For the purposes of computing the amount available to be drawn under any U.S. Letter of Credit, the amount of such U.S. Letter of Credit shall be determined in accordance with Section 1.07. For all purposes of this Agreement, if on any date of determination a U.S. Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such U.S. Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

“U.S. Letter of Credit” means any letter of credit issued hereunder by the U.S. L/C Issuer and shall include the applicable Existing Letters of Credit. A U.S. Letter of Credit may be a commercial letter of credit or a standby letter of credit. U.S. Letters of Credit shall be issued in Dollars or an Alternative Currency.

“U.S. Letter of Credit Sublimit” means an amount equal to $25,000,000. The U.S. Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.

“U.S. Revolving Commitment” means, as to any U.S. Sub-facility Lender, the obligation of such Lender, if any, to make U.S. Revolving Loans and participate in U.S. Letters of Credit, in an aggregate principal and/or face amount not to exceed the amount set forth under the heading “U.S. Revolving Commitment” under such Lender’s name on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender became a party hereto, as the same may be changed from time to time pursuant to the terms hereof.

“U.S. Revolving Loan” has the meaning specified in Section 2.01(b).

“U.S. Security Documents” means, collectively, (a) the U.S. Guaranty and Collateral Agreement, (b) a share mortgage executed and delivered by the Company in favor of the Administrative Agent in its own capacity and as agent for the U.S. Sub-facility Lenders and the Australian Administrative Agent in its own capacity and as agent for the Australian Sub-facility Lenders in respect of 66% of the share capital in Multi-Color Australia Holdings Pty Limited, (c) each of the mortgages, deeds of trust or similar real

 

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property security agreements, if any, required pursuant to Section 6.13, and (d) all other documents delivered to the Administrative Agent granting or perfecting a Lien on the property of any Person for the benefit of the U.S. Sub-facility Lenders, including, without limitation, all financing statements filed in connection therewith, any intellectual property security agreements, blocked account agreements or control agreements that may be required to be delivered pursuant to this Agreement or any other Loan Document with respect to such property, and all other security documents hereafter delivered to the Administrative Agent granting or perfecting a Lien on such property of any Person to secure the Obligations of any applicable Loan Party under any Loan Document.

“U.S. Sub-facility” means, collectively, the U.S. Revolving Loans, the U.S. Letters of Credit and the Term A Loans.

“U.S. Sub-facility Lender” means each Lender that has a U.S. Revolving Commitment or is a holder of a Term A Loan.

“Westpac” means Westpac Banking Corporation and its successors.

1.02 Other Interpretive Provisions.

With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document (including any Organization Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Loan Document), (ii) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, and (vi) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

 

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(b) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”

(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

1.03 Accounting Terms.

(a) Generally. All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis, as in effect from time to time, applied in a manner consistent with that used in preparing the Audited Financial Statements, except as otherwise specifically prescribed herein.

(b) Changes in GAAP. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and either the Company or the Required Lenders shall so request, the Agents, the Lenders and the Company shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Company shall provide to the Agents and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

(c) Consolidation of Variable Interest Entities. All references herein to consolidated financial statements of the Company and its Subsidiaries or to the determination of any amount for the Company and its Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Company is required to consolidate pursuant to FASB Interpretation No. 46 – Consolidation of Variable Interest Entities: an interpretation of ARB No. 51 (January 2003) as if such variable interest entity were a Subsidiary as defined herein.

1.04 Rounding.

Any financial ratios required to be maintained by the Company pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

1.05 Spot Rates; Currency Equivalents.

(a) The Administrative Agent or the U.S. L/C Issuer, as applicable, shall determine the Spot Rates as of each Revaluation Date to be used for calculating Dollar Equivalent amounts of Credit Extensions and Outstanding Amounts denominated in Australian Dollars or in Alternative Currencies. Such Spot Rates shall become effective as of such Revaluation Date and shall be the Spot Rates employed in converting any amounts between the applicable currencies until the next Revaluation Date to occur.

 

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Except for purposes of financial statements delivered by Loan Parties hereunder or calculating financial covenants hereunder or except as otherwise provided herein, the applicable amount of any currency (other than Dollars) for purposes of the Loan Documents shall be such Dollar Equivalent amount as so determined by the Administrative Agent or the U.S. L/C Issuer, as applicable.

(b) Wherever in this Agreement in connection with a Committed Borrowing or the issuance, amendment or extension of a Letter of Credit, an amount, such as a required minimum or multiple amount, is expressed in Dollars, but such Committed Borrowing or Letter of Credit is denominated in Australian Dollars or an Alternative Currency, such amount shall be the Dollar Equivalent of such Dollar amount (rounded to the nearest Australian Dollar or such Alternative Currency, as the case may be, with 0.5 of an Australian Dollar or such Alternative Currency being rounded upward), as determined by the Administrative Agent or the U.S. L/C Issuer, as the case may be.

1.06 Times of Day.

Unless otherwise specified, all references herein to times of day shall be references to Eastern time in the United States (daylight or standard, as applicable).

1.07 Letter of Credit Amounts.

Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the Dollar Equivalent of the stated amount of such Letter of Credit in effect at such time; provided, however, that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the Dollar Equivalent of the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

1.08 Code of Banking Practice (2003).

The Code of Banking Practice (2003) (Cth) does not apply to the Loan Documents or any banking services provided thereunder.

ARTICLE II.

THE COMMITMENTS AND CREDIT EXTENSIONS

2.01 Committed Loans.

(a) Term A Loans.

(i) Term A Loans Generally. Subject to the terms and conditions set forth herein, each U.S. Sub-facility Lender with a Term A Loan Commitment severally agrees to make loans (each such loan, a “Term A Loan”) to the Company in Dollars in an aggregate amount of such U.S. Sub-facility Lender’s Term A Loan Commitment in two separate draws, the first of which occurred on the Closing Date in an aggregate principal amount of $50,000,000 (which, as of the Third Amendment Effective Date, is in a

 

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remaining principal amount of $17,500,000) and the second of which may be made as set forth below in Section 2.01(a)(ii) in an aggregate principal amount of $315,000,000, as reduced from time to time pursuant to Section 2.06(b) (the “Delayed Draw Sub-facility”).

(ii) Delayed Draw Sub-facility. Subject to the terms and conditions set forth herein, at any time after the Third Amendment Effective Date until Delayed Draw Expiration Date, the Company may request a single borrowing of Term A Loans in an aggregate principal amount up to the principal amount of the Delayed Draw Sub-facility in accordance with Section 2.02. Notwithstanding the foregoing, if the Delayed Draw Sub-facility is not drawn prior to the Delayed Draw Expiration Date, such Delayed Draw Sub-facility shall automatically terminate on the Delayed Draw Expiration Date.

(b) U.S. Revolving Loans.

Subject to the terms and conditions set forth herein, each U.S. Sub-facility Lender with a U.S. Revolving Commitment severally agrees to make loans (each such loan, a “U.S. Revolving Loan”) to the Company in Dollars or in one or more Alternative Currencies from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s U.S. Revolving Commitment; provided, however, that after giving effect to any U.S. Revolving Loan, (i) the aggregate Outstanding Amount of all U.S. Revolving Loans shall not exceed the Aggregate U.S. Revolving Loan Commitments, (ii) the aggregate Outstanding Amount of the U.S. Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all U.S. L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s U.S. Revolving Commitment, and (iii) the aggregate Outstanding Amount of all Committed Loans denominated in Alternative Currencies shall not exceed the Alternative Currency Sublimit. Within the limits of each U.S. Sub-facility Lender’s U.S. Revolving Loan Commitment (if any), and subject to the other terms and conditions hereof, the Company may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. U.S. Revolving Loans may be Base Rate Loans or Eurocurrency Rate Loans, as further provided herein.

(c) Australian Revolving Loans.

Subject to the terms and conditions set forth herein, each Australian Sub-facility Lender severally agrees to make loans (each such loan, an “Australian Revolving Loan” and, together with each Term A Loan and each U.S. Revolving Loan, the “Committed Loans”) to the Australian Borrower in Australian Dollars from time to time, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Australian Revolving Commitment; provided, however, that after giving effect to any Australian Revolving Loan, (i) the aggregate Outstanding Amount of all Australian Revolving Loans shall not exceed the Aggregate Australian Revolving Commitments, and (ii) the aggregate Outstanding Amount of the Australian Revolving Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Australian L/C Obligations shall not exceed such Lender’s Australian Revolving Commitment. Within the limits of each Australian Sub-facility Lender’s Australian Revolving Loan Commitment, and subject to the other terms and conditions hereof, the Australian Borrower may borrow under this Section 2.01, prepay under Section 2.05, and reborrow under this Section 2.01. Australian Revolving Loans shall be BBSY Loans, as further provided herein.

2.02 Borrowings, Conversions and Continuations of Committed Loans.

 

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(a) Each Committed Borrowing, each conversion of Committed Loans from one Type to the other, and each continuation of Eurocurrency Rate Loans or BBSY Loans shall be made upon the applicable Borrower’s irrevocable notice to the applicable Agent, which may be given by telephone. Each such notice must be received by the applicable Agent not later than 11:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or BBSY Loans or of any conversion of Eurocurrency Rate Loans to Base Rate Committed Loans and (ii) on the requested date of any Borrowing of Base Rate Committed Loans. Each telephonic notice by such Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the applicable Agent of a written Committed Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower. Each Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or BBSY Loans shall be in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Sections 2.03(c) and 2.04(c), each Committed Borrowing of or conversion to Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall specify (i) whether the applicable Borrower is requesting a Committed Borrowing, a conversion of Committed Loans from one Type to the other, or a continuation of Eurocurrency Rate Loans or BBSY Loans, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Committed Loans to be borrowed, converted or continued, (iv) the Type of Committed Loans to be borrowed or to which existing Committed Loans are to be converted, (v) if applicable, the duration of the Interest Period with respect thereto, (vi) the currency of the Committed Loans to be borrowed, and (vii) if applicable, the Designated Borrower. If the Company fails to specify a Type of Committed Loan in a Committed Loan Notice or if the Company fails to give a timely notice requesting a conversion or continuation, then the applicable Committed Loans shall be made as, or converted to, Base Rate Loans. Any automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurocurrency Rate Loans. If any Borrower requests a Borrowing of, conversion to, or continuation of Eurocurrency Rate Loans or BBSY Loans in any Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.

(b) Following receipt of a Committed Loan Notice, the applicable Agent shall promptly notify each applicable Lender of the amount of its Applicable Percentage of the applicable Committed Loans, and if no timely notice of a conversion or continuation is provided by the applicable Borrower, the applicable Agent shall notify each applicable Lender of the details of any automatic conversion to Base Rate Loans or continuation of Committed Loans denominated in Australian Dollars, in each case as described in the preceding subsection. In the case of a Committed Borrowing, each Lender shall make the amount of its Committed Loan available to the applicable Agent in Same Day Funds at the Administrative Agent’s Office or Australian Administrative Agent’s Office, as applicable, for the applicable currency not later than 1:00 p.m., in the case of any Committed Loan denominated in Dollars, and not later than the Applicable Time specified by the Australian Administrative Agent in the case of any Committed Loan in Australian Dollars, in each case on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), the applicable Agent shall make all funds so received available to the Company or the other applicable Borrower in like funds as received by such Agent either by (i) crediting the account of such Borrower on the books of Bank of America or Westpac, as the case may be, with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) such Agent by the applicable

 

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Borrower; provided, however, that if, (i) on the date the Committed Loan Notice with respect to such Borrowing denominated in Dollars is given by the applicable Borrower, there are U.S. L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in full of any such U.S. L/C Borrowings, and, second, shall be made available to the applicable Borrower as provided above, and (ii) on the date the Committed Loan Notice with respect to such Borrowing denominated in Australian Dollars is given by the applicable Borrower, there are Australian L/C Borrowings outstanding, then the proceeds of such Borrowing, first, shall be applied to the payment in full of any such Australian L/C Borrowings, and, second, shall be made available to the applicable Borrower as provided above.

(c) Except as otherwise provided herein, a Eurocurrency Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurocurrency Rate Loan and a BBSY Loan may be continued or converted only on the last day of an Interest Period for such BBSY Loan. During the existence of a Default, no Loans may be requested as, converted to or continued as Eurocurrency Rate Loans or BBSY Loans, as the case may be, without the consent of the Required Lenders.

(d) The Administrative Agent shall promptly notify the Company and the U.S. Sub-facility Lenders of the interest rate applicable to any Interest Period for Eurocurrency Rate Loans upon determination of such interest rate, and the Australian Administrative Agent shall promptly notify the Company and the Australian Sub-facility Lenders of the interest rate applicable to any Interest Period for BBSY Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Company and the U.S. Sub-facility Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.

(e) After giving effect to all Committed Borrowings, all conversions of Committed Loans from one Type to the other, and all continuations of Committed Loans as the same Type, there shall not be more than ten Interest Periods in effect with respect to Committed Loans.

2.03 Letters of Credit.

(a) The Letter of Credit Commitment.

(i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Lenders set forth in this Section 2.03, (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars, in one or more Alternative Currencies or in Australian Dollars, as the case may be, for the account of the Company or its Subsidiaries, and to amend Letters of Credit previously issued by it, in accordance with subsection (b) below, and (2) to honor drawings under the Letters of Credit; and (B) the U.S. Sub-facility Lenders with U.S. Revolving Commitments severally agree to participate in Letters of Credit issued for the account of the Company or its Subsidiaries by the U.S. L/C Issuer and any drawings thereunder and the Australian Sub-facility Lenders severally agree to participate in Letters of Credit issued for the account of the Australian Borrower or its Subsidiaries by the Australian L/C Issuer and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (w) the Total Outstandings shall not exceed the Aggregate Commitments, (x) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such

 

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Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, (y) the Outstanding Amount of the U.S. L/C Obligations shall not exceed the U.S. Letter of Credit Sublimit and (z) the Outstanding Amount of the Australian L/C Obligations shall not exceed the Australian Letter of Credit Sublimit. Each request by the applicable Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by such Borrower that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, such Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly such Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed. All Existing Letters of Credit are set forth on Schedule 2.03 and shall be deemed to have been issued pursuant hereto, and from and after the Closing Date shall be subject to and governed by the terms and conditions hereof.

(ii) Neither L/C Issuer shall issue any Letter of Credit, if:

(A) the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance, unless the Required Lenders have approved such expiry date; or

(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless all the Lenders have approved such expiry date.

(iii) Neither L/C Issuer shall be under any obligation to issue any Letter of Credit if:

(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it;

(B) the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;

(C) except as otherwise agreed by the applicable Agent and such L/C Issuer, such Letter of Credit is in an initial stated amount less than $100,000, in the case of a commercial Letter of Credit, or $500,000 in the case of a standby Letter of Credit;

(D) except as otherwise agreed by the applicable Agent and such L/C Issuer, such Letter of Credit is to be denominated in a currency other than Dollars, one or more Alternative Currencies or Australian Dollars, as the case may be;

 

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(E) such L/C Issuer does not as of the issuance date of such requested Letter of Credit issue Letters of Credit in the requested currency;

(F) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or

(G) a default of any Lender’s obligations to fund under Section 2.03(c) exists or any Lender is at such time a Defaulting Lender hereunder, unless such L/C Issuer has entered into satisfactory arrangements with the applicable Borrower or such Lender to eliminate such L/C Issuer’s risk with respect to such Lender.

(iv) Neither L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.

(v) Neither L/C Issuer shall be under any obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.

(vi) Each L/C Issuer shall act on behalf of the applicable Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the benefits and immunities (A) provided to the Agents in Article IX with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Agents” as used in Article IX included such L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to such L/C Issuer.

(b) Procedures for Issuance and Amendment of Letters of Credit.

(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the applicable Borrower delivered to the applicable L/C Issuer (with a copy to the applicable Agent) in the form of a Letter of Credit Application, appropriately completed and signed by a Responsible Officer of the applicable Borrower. Such Letter of Credit Application must be received by such L/C Issuer and such Agent not later than 11:00 a.m. at least two Business Days (or such later date and time as such Agent and such L/C Issuer may agree in a particular instance in their sole discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to such L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as such L/C Issuer may require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to such L/C Issuer: (V) the Letter of Credit to be amended; (W) the proposed date of

 

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amendment thereof (which shall be a Business Day); (X) the nature of the proposed amendment; (Y) a copy of the applicable beneficiary’s consent to the proposed amendments; and (Z) such other matters as such L/C Issuer may require. Additionally, the applicable Borrower shall furnish to the applicable L/C Issuer and the applicable Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as such L/C Issuer or such Agent may require.

(ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the applicable Agent (by telephone or in writing) that such Agent has received a copy of such Letter of Credit Application from the applicable Borrower and, if not, the applicable L/C Issuer will provide the applicable Agent with a copy thereof. Unless such L/C Issuer has received written notice from any Lender, the applicable Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article IV shall not then be satisfied, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Company (or the applicable Subsidiary) or enter into the applicable amendment, as the case may be, in each case in accordance with such L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each U.S. Letter of Credit, each U.S. Sub-facility Lender with a U.S. Revolving Commitment shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the U.S. L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit. Immediately upon the issuance of each Australian Letter of Credit, each Australian Sub-facility Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Australian L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Lender’s Applicable Percentage times the amount of such Letter of Credit.

(iii) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also deliver to the applicable Borrower and the applicable Agent a true and complete copy of such Letter of Credit or amendment.

(c) Drawings and Reimbursements; Funding of Participations.

(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable L/C Issuer shall notify the applicable Borrower and the applicable Agent thereof. In the case of a Letter of Credit denominated in an Alternative Currency, the Company shall reimburse the U.S. L/C Issuer in such Alternative Currency, unless (A) the U.S. L/C Issuer (at its option) shall have specified in such notice that it will require reimbursement in Dollars, or (B) in the absence of any such requirement for reimbursement in Dollars, the Company shall have notified the U.S. L/C Issuer promptly following receipt of the notice of drawing that the Company will reimburse the U.S. L/C Issuer in Dollars. Not later than 11:00 a.m. on the date of any payment by the U.S. L/C Issuer under a Letter of Credit to be reimbursed in Dollars, or the Applicable Time on the date of any payment by the Australian L/C Issuer under a Letter of Credit to be reimbursed in Australian Dollars (each such date, an “Honor Date”), the applicable Borrower shall reimburse the applicable L/C Issuer in an amount equal to the amount of such drawing and in the applicable currency. If the applicable

 

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Borrower fails to so reimburse the L/C Issuer by such time, the applicable L/C Issuer shall promptly notify the applicable Agent, and the applicable Agent shall promptly notify each applicable Lender of the Honor Date, the amount of the unreimbursed drawing (expressed in Dollars in the case of a U.S. Letter of Credit or in Australian Dollars in the case of an Australian Letter of Credit) (the “Unreimbursed Amount”), and the amount of such Lender’s Applicable Percentage thereof. In such event, the applicable Borrower shall be deemed to have requested a Committed Borrowing of Base Rate Loans or BBSY Loans, as the case may be, to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section 2.02 for the principal amount of Base Rate Loans or BBSY Loans, as the case may be, but subject to the amount of the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02 (other than the delivery of a Committed Loan Notice). Any notice given by an L/C Issuer or Agent pursuant to this Section 2.03(c)(i) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

(ii) Each applicable Lender shall upon any notice pursuant to Section 2.03(c)(i) make funds available to the applicable Agent for the account of the applicable L/C Issuer, in Dollars or Australian Dollars, as applicable, at the Administrative Agent’s Office for Dollar-denominated payments or at the Australian Administrative Agent’s Office for Australian Dollar-denominated payments, as the case may be, in an amount equal to its Applicable Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the applicable Agent, whereupon, subject to the provisions of Section 2.03(c)(iii), each Lender that so makes funds available shall be deemed to have made a Base Rate Committed Loan or BBSY Committed Loan, as the case may be, to the applicable Borrower in such amount. The Administrative Agent shall remit the funds so received to the U.S. L/C Issuer in Dollars and the Australian Administrative Agent shall remit the funds so received to the Australian L/C Issuer in Australian Dollars.

(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Committed Borrowing of Base Rate Loans or BBSY Loans, as the case may be, because the conditions set forth in Section 4.02 cannot be satisfied or for any other reason, the applicable Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Lender’s payment to the applicable Agent for the account of the applicable L/C Issuer pursuant to Section 2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section 2.03.

(iv) Until each Lender funds its Committed Loan or L/C Advance pursuant to this Section 2.03(c) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Percentage of such amount shall be solely for the account of the applicable L/C Issuer.

(v) Each Lender’s obligation to make Committed Loans or L/C Advances to reimburse the applicable L/C Issuer for amounts drawn under Letters of Credit, as contemplated

 

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by this Section 2.03(c), shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against such L/C Issuer, the Company, any Subsidiary of the Company or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each Lender’s obligation to make Committed Loans pursuant to this Section 2.03(c) is subject to the conditions set forth in Section 4.02 (other than delivery by the Company of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the applicable Borrower to reimburse the applicable L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter of Credit, together with interest as provided herein.

(vi) If any Lender fails to make available to the applicable Agent for the account of the applicable L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section 2.03(c) by the time specified in Section 2.03(c)(ii), such L/C Issuer shall be entitled to recover from such Lender (acting through the applicable Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such L/C Issuer at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by such L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Committed Loan included in the relevant Committed Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of the applicable L/C Issuer submitted to any Lender (through the applicable Agent) with respect to any amounts owing under this clause (vi) shall be conclusive absent manifest error.

(d) Repayment of Participations.

(i) At any time after the applicable L/C Issuer has made a payment under any Letter of Credit and has received from any Lender such Lender’s L/C Advance in respect of such payment in accordance with Section 2.03(c), if the applicable Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Company or otherwise, including proceeds of Cash Collateral applied thereto by the applicable Agent), the applicable Agent will distribute to such Lender its Applicable Percentage thereof in the same funds as those received by such Agent.

(ii) If any payment received by an Agent for the account of the applicable L/C Issuer pursuant to Section 2.03(d)(i) is required to be returned under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by such L/C Issuer in its discretion), each Lender shall pay to the applicable Agent for the account of such L/C Issuer its Applicable Percentage thereof on demand of such Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the applicable Overnight Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

 

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(e) Obligations Absolute. The obligation of each Borrower to reimburse the applicable L/C Issuer for each drawing under each Letter of Credit and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;

(ii) the existence of any claim, counterclaim, setoff, defense or other right that the Company or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), either L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

(iv) any payment by the applicable L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by such L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law;

(v) any adverse change in the relevant exchange rates or in the availability of the relevant currency to the Company or any Subsidiary or in the relevant currency markets generally; or

(vi) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Company or any Subsidiary.

The applicable Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with such Borrower’s instructions or other irregularity, such Borrower will immediately notify the applicable L/C Issuer. Absent manifest error, such Borrower shall be conclusively deemed to have waived any such claim against such L/C Issuer and its correspondents unless such notice is given as aforesaid.

(f) Role of L/C Issuer. Each Lender and each Borrower agree that, in paying any drawing under a Letter of Credit, the L/C Issuers shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of the L/C Issuers, the Agents, any of their respective Related

 

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Parties nor any correspondent, participant or assignee of either L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Lenders or the Required Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of Credit or Issuer Document. Each Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided, however, that this assumption is not intended to, and shall not, preclude the Company’s pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of the L/C Issuers, the Agents, any of their respective Related Parties nor any correspondent, participant or assignee of either L/C Issuer shall be liable or responsible for any of the matters described in clauses (i) through (v) of Section 2.03(e); provided, however, that anything in such clauses to the contrary notwithstanding, a Borrower may have a claim against an L/C Issuer, and such L/C Issuer may be liable to such Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by such Borrower which such Borrower proves were caused by such L/C Issuer’s willful misconduct or gross negligence or such L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificate(s) strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, an L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and such L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason.

(g) Cash Collateral. (i) Upon the request of the Administrative Agent, (A) if the applicable L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or (B) if, as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, the Company shall, in each case, immediately Cash Collateralize the then Outstanding Amount of all L/C Obligations.

(ii) In addition, if the Administrative Agent notifies the Company at any time that the Outstanding Amount of all L/C Obligations at such time exceeds 105% of the Letter of Credit Sublimit then in effect, then, within two Business Days after receipt of such notice, the Company shall Cash Collateralize the L/C Obligations in an amount equal to the amount by which the Outstanding Amount of all L/C Obligations exceeds the Letter of Credit Sublimit.

(iii) The Administrative Agent may, at any time and from time to time after the initial deposit of Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of exchange rate fluctuations.

(iv) Sections 2.05 and 8.02(c) set forth certain additional requirements to deliver Cash Collateral hereunder. For purposes of this Section 2.03, Section 2.05 and Section 8.02(c), “Cash Collateralize” means to pledge and deposit with or deliver to the applicable Agent, for the benefit of the applicable L/C Issuer and the applicable Lenders, as collateral for the L/C Obligations, cash or deposit account balances pursuant to documentation in form and substance satisfactory to such Agent and such L/C Issuer (which documents are hereby consented to by the Lenders). Derivatives of such term have corresponding meanings. The Company hereby grants

 

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to the Administrative Agent, for the benefit of the L/C Issuers and the Lenders, a security interest in all such cash, deposit accounts and all balances therein and all proceeds of the foregoing. Cash Collateral shall be maintained in blocked accounts at Bank of America.

(h) Applicability of ISP and UCP. Unless otherwise expressly agreed by the applicable L/C Issuer and the applicable Borrower when a Letter of Credit is issued (including any such agreement applicable to an Existing Letter of Credit), (i) the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the rules of the Uniform Customs and Practice for Documentary Credits, as most recently published by the International Chamber of Commerce at the time of issuance shall apply to each commercial Letter of Credit.

(i) Letter of Credit Fees. The applicable Borrower shall pay to the applicable Agent for the account of each applicable Lender in accordance with its Applicable Percentage, in Dollars or Australian Dollars, as applicable, a Letter of Credit fee (the “Letter of Credit Fee”) for each Letter of Credit equal to the Applicable Rate times the daily amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07. Letter of Credit Fees shall be (i) due and payable on the first Business Day after the end of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (ii) computed on a quarterly basis in arrears. If there is any change in the Applicable Rate during any quarter, the daily amount available to be drawn under each Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.

(j) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer. The applicable Borrower shall pay directly to the applicable L/C Issuer for its own account, in Dollars or Australian Dollars, as applicable, a fronting fee (i) with respect to each commercial Letter of Credit, at the rate specified in the Fee Letter, computed on the amount of such Letter of Credit, and payable upon the issuance thereof, (ii) with respect to any amendment of a commercial Letter of Credit increasing the amount of such Letter of Credit, at a rate separately agreed between the Borrower and the L/C Issuer, computed on the amount of such increase, and payable upon the effectiveness of such amendment, and (iii) with respect to each standby Letter of Credit, at the rate per annum specified in the Fee Letter, computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on the tenth Business Day after the end of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section 1.07. In addition, the applicable Borrower shall pay directly to the applicable L/C Issuer for its own account, in Dollars or Australian Dollars, as applicable, the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the applicable L/C Issuer relating to Letters of Credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

 

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(k) Conflict with Issuer Documents. In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.

(l) Letters of Credit Issued for Subsidiaries. Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the applicable Borrower shall be obligated to reimburse the applicable L/C Issuer hereunder for any and all drawings under such Letter of Credit. The Company hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Company, and that the Company’s business derives substantial benefits from the businesses of such Subsidiaries.

2.04 Swing Line Loans.

(a) The Swing Line. Subject to the terms and conditions set forth herein, the Swing Line Lender agrees, in reliance upon the agreements of the other Lenders set forth in this Section 2.04, to make loans in Dollars (each such loan, a “Swing Line Loan”) to the Company from time to time on any Business Day during the Availability Period in an aggregate amount not to exceed at any time outstanding the amount of the Swing Line Sublimit, notwithstanding the fact that such Swing Line Loans, when aggregated with the Applicable Percentage of the Outstanding Amount of Committed Loans and L/C Obligations of the Lender acting as Swing Line Lender, may exceed the amount of such Lender’s Commitment; provided, however, that after giving effect to any Swing Line Loan, (i) the Total Outstandings shall not exceed the Aggregate Commitments, and (ii) the aggregate Outstanding Amount of the Committed Loans of any Lender, plus such Lender’s Applicable Percentage of the Outstanding Amount of all L/C Obligations, plus such Lender’s Applicable Percentage of the Outstanding Amount of all Swing Line Loans shall not exceed such Lender’s Commitment, and provided, further, that the Company shall not use the proceeds of any Swing Line Loan to refinance any outstanding Swing Line Loan. Within the foregoing limits, and subject to the other terms and conditions hereof, the Company may borrow under this Section 2.04, prepay under Section 2.05, and reborrow under this Section 2.04. Each Swing Line Loan shall be a Base Rate Loan. Immediately upon the making of a Swing Line Loan, each U.S. Sub-facility Lender with a U.S. Revolving Commitment shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a risk participation in such Swing Line Loan in an amount equal to the product of such U.S. Sub-facility Lender’s Applicable Percentage times the amount of such Swing Line Loan.

(b) Borrowing Procedures. Each Swing Line Borrowing shall be made upon the Company’s irrevocable notice to the Swing Line Lender and the Administrative Agent, which may be given by telephone. Each such notice must be received by the Swing Line Lender and the Administrative Agent not later than 2:00 p.m. on the requested borrowing date, and shall specify (i) the amount to be borrowed, which shall be a minimum of $100,000, and (ii) the requested borrowing date, which shall be a Business Day. Each such telephonic notice must be confirmed promptly by delivery to the Swing Line Lender and the Administrative Agent of a written Swing Line Loan Notice, appropriately completed and signed by a Responsible Officer of the Company. Promptly after receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the Swing Line Lender will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has also received such Swing Line Loan Notice and, if not, the Swing Line Lender will notify the Administrative Agent (by telephone or in writing) of the contents thereof. Unless the Swing Line Lender has received notice (by telephone or in writing) from the Administrative Agent (including at the request of any U.S. Sub-facility Lender with a U.S. Revolving Commitment) prior to 2:00 p.m. on the date of the proposed Swing Line Borrowing (A) directing the

 

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Swing Line Lender not to make such Swing Line Loan as a result of the limitations set forth in the first proviso to the first sentence of Section 2.04(a), or (B) that one or more of the applicable conditions specified in Article IV is not then satisfied, then, subject to the terms and conditions hereof, the Swing Line Lender will, not later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan Notice, make the amount of its Swing Line Loan available to the Company at its office by crediting the account of the Company on the books of the Swing Line Lender in Same Day Funds.

(c) Refinancing of Swing Line Loans.

(i) The Swing Line Lender at any time in its sole and absolute discretion may request, on behalf of the Company (which hereby irrevocably authorizes the Swing Line Lender to so request on its behalf), that each U.S. Sub-facility Lender with a U.S. Revolving Commitment make a Base Rate Committed Loan in an amount equal to such U.S. Sub-facility Lender’s Applicable Percentage of the amount of Swing Line Loans then outstanding. Such request shall be made in writing (which written request shall be deemed to be a Committed Loan Notice for purposes hereof) and in accordance with the requirements of Section 2.02, without regard to the minimum and multiples specified therein for the principal amount of Base Rate Loans, but subject to the unutilized portion of the Aggregate Commitments and the conditions set forth in Section 4.02. The Swing Line Lender shall furnish the Company with a copy of the applicable Committed Loan Notice promptly after delivering such notice to the Administrative Agent. Each U.S. Sub-facility Lender with a U.S. Revolving Commitment shall make an amount equal to its Applicable Percentage of the amount specified in such Committed Loan Notice available to the Administrative Agent in Same Day Funds for the account of the Swing Line Lender at the Administrative Agent’s Office for Dollar-denominated payments not later than 1:00 p.m. on the day specified in such Committed Loan Notice, whereupon, subject to Section 2.04(c)(ii), each U.S. Sub-facility Lender with a U.S. Revolving Commitment that so makes funds available shall be deemed to have made a Base Rate Committed Loan to the Company in such amount. The Administrative Agent shall remit the funds so received to the Swing Line Lender.

(ii) If for any reason any Swing Line Loan cannot be refinanced by such a Committed Borrowing in accordance with Section 2.04(c)(i), the request for Base Rate Committed Loans submitted by the Swing Line Lender as set forth herein shall be deemed to be a request by the Swing Line Lender that each of the U.S. Sub-facility Lenders with U.S. Revolving Commitments fund its risk participation in the relevant Swing Line Loan and each U.S. Sub-facility Lender’s payment to the Administrative Agent for the account of the Swing Line Lender pursuant to Section 2.04(c)(i) shall be deemed payment in respect of such participation.

(iii) If any U.S. Sub-facility Lender with a U.S. Revolving Commitment fails to make available to the Administrative Agent for the account of the Swing Line Lender any amount required to be paid by such U.S. Sub-facility Lender pursuant to the foregoing provisions of this Section 2.04(c) by the time specified in Section 2.04(c)(i), the Swing Line Lender shall be entitled to recover from such U.S. Sub-facility Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swing Line Lender at a rate per annum equal to the applicable Overnight Rate from time to time in effect, plus any administrative, processing or similar fees customarily charged by the Swing Line Lender in

 

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connection with the foregoing. If such U.S. Sub-facility Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such U.S. Sub-facility Lender’s Committed Loan included in the relevant Committed Borrowing or funded participation in the relevant Swing Line Loan, as the case may be. A certificate of the Swing Line Lender submitted to any U.S. Sub-facility Lender with a U.S. Revolving Commitment (through the Administrative Agent) with respect to any amounts owing under this clause (iii) shall be conclusive absent manifest error.

(iv) Each U.S. Sub-facility Lender’s obligation, if any, to make Committed Loans or to purchase and fund risk participations in Swing Line Loans pursuant to this Section 2.04(c) shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such U.S. Sub-facility Lender may have against the Swing Line Lender, the Company or any other Person for any reason whatsoever, (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided, however, that each U.S. Sub-facility Lender’s obligation, if any, to make Committed Loans pursuant to this Section 2.04(c) is subject to the conditions set forth in Section 4.02. No such funding of risk participations shall relieve or otherwise impair the obligation of the Company to repay Swing Line Loans, together with interest as provided herein.

(d) Repayment of Participations.

(i) At any time after any U.S. Sub-facility Lender with a U.S. Revolving Commitment has purchased and funded a risk participation in a Swing Line Loan, if the Swing Line Lender receives any payment on account of such Swing Line Loan, the Swing Line Lender will distribute to such U.S. Sub-facility Lender its Applicable Percentage thereof in the same funds as those received by the Swing Line Lender.

(ii) If any payment received by the Swing Line Lender in respect of principal or interest on any Swing Line Loan is required to be returned by the Swing Line Lender under any of the circumstances described in Section 10.05 (including pursuant to any settlement entered into by the Swing Line Lender in its discretion), each U.S. Sub-facility Lender with a U.S. Revolving Commitment shall pay to the Swing Line Lender its Applicable Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned, at a rate per annum equal to the applicable Overnight Rate. The Administrative Agent will make such demand upon the request of the Swing Line Lender. The obligations of the U.S. Sub-facility Lenders with U.S. Revolving Commitments under this clause shall survive the payment in full of the Obligations and the termination of this Agreement.

(e) Interest for Account of Swing Line Lender. The Swing Line Lender shall be responsible for invoicing the Company for interest on the Swing Line Loans. Until each U.S. Sub-facility Lender with a U.S. Revolving Commitment funds its Base Rate Committed Loan or risk participation pursuant to this Section 2.04 to refinance such U.S. Sub-facility Lender’s Applicable Percentage of any Swing Line Loan, interest in respect of such Applicable Percentage shall be solely for the account of the Swing Line Lender.

 

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(f) Payments Directly to Swing Line Lender. The Company shall make all payments of principal and interest in respect of the Swing Line Loans directly to the Swing Line Lender.

2.05 Prepayments.

(a) Each Borrower may, upon notice from the Company to the applicable Agent, at any time or from time to time voluntarily prepay Committed Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the applicable Agent not later than 11:00 a.m. (A) three Business Days prior to any date of prepayment of Eurocurrency Rate Loans denominated in Dollars, (B) three Business Days prior to any date of prepayment of BBSY Loans denominated in Australian Dollars, and (C) on the date of prepayment of Base Rate Committed Loans; (ii) any prepayment of Eurocurrency Rate Loans denominated in Dollars shall be in a principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof; (iii) any prepayment of BBSY Loans denominated in Australian Dollars shall be in a minimum principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof; and (iv) any prepayment of Base Rate Committed Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Type(s) of Committed Loans to be prepaid and, if Eurocurrency Rate Loans or BBSY Loans are to be prepaid, the Interest Period(s) of such Loans. The applicable Agent will promptly notify each applicable Lender of its receipt of each such notice, and of the amount of such Lender’s applicable portion of such prepayment. If such notice is given by the Company, the applicable Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurocurrency Rate Loan or BBSY Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section 3.05. Each such prepayment of Term A Loans shall be applied to the Term A Loans in inverse order of maturity pro rata among each U.S. Sub-facility Lender that is a holder of a Term A Loan. Each such prepayment shall be applied to other Committed Loans of the Lenders in accordance with their respective Applicable Percentages.

(b) The Company may, upon notice to the Swing Line Lender (with a copy to the Administrative Agent), at any time or from time to time, voluntarily prepay Swing Line Loans in whole or in part without premium or penalty; provided that (i) such notice must be received by the Swing Line Lender and the Administrative Agent not later than 1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be in a minimum principal amount of $100,000. Each such notice shall specify the date and amount of such prepayment. If such notice is given by the Company, the Company shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein.

(c) If the Administrative Agent notifies the Company at any time that the Total Outstandings at such time exceed an amount equal to 105% of the Aggregate Commitments then in effect, then, within two Business Days after receipt of such notice, the Borrowers shall prepay Loans and/or the Company shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding Amount as of such date of payment to an amount not to exceed 100% of the Aggregate Commitments then in effect; provided, however, that, subject to the provisions of Section 2.03(g)(ii), the Company shall not be required to Cash Collateralize the L/C Obligations pursuant to this Section 2.05(c) unless after the prepayment in full of the Loans the Total Outstandings exceed the Aggregate Commitments then in effect. The Administrative Agent may, at any time and from time to time after the initial deposit of such

 

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Cash Collateral, request that additional Cash Collateral be provided in order to protect against the results of further exchange rate fluctuations.

2.06 Termination or Reduction of Commitments.

(a) The Company may, upon notice to the Agents, terminate the Aggregate U.S. Revolving Commitments and/or Aggregate Australian Revolving Commitments, or from time to time permanently reduce the Aggregate U.S. Revolving Commitments and/or Aggregate Australian Revolving Commitments; provided that (i) any such notice shall be received by the Agents not later than 11:00 a.m. five Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) the Company shall not terminate or reduce the Aggregate U.S. Revolving Commitments and/or Aggregate Australian Revolving Commitments under this clause if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Outstandings would exceed the Aggregate Commitments, and (iv) if, after giving effect to any reduction of the Aggregate U.S. Revolving Commitments and/or Aggregate Australian Revolving Commitments, the applicable Letter of Credit Sublimit or, if applicable, the Swing Line Sublimit exceeds the amount of the Aggregate U.S. Revolving Commitments and/or Aggregate Australian Revolving Commitments, such Sublimit shall be automatically reduced by the amount of such excess. The Administrative Agent will promptly notify the Lenders of any such notice of termination or reduction of the Aggregate U.S. Revolving Commitments and/or Aggregate Australian Revolving Commitments. Except as provided above, the amount of any such reduction shall not be applied to the applicable Letter of Credit Sublimit unless otherwise specified by the Company. Any reduction pursuant to this clause (a) shall be applied to the Commitment of each Lender according to its Applicable Percentage. All fees accrued until the effective date of any termination of the Aggregate U.S. Revolving Commitments and/or Aggregate Australian Revolving Commitments shall be paid on the effective date of such termination.

(b) The Company may, upon notice to the Administrative Agent, terminate the unused portion of the Term A Loan Commitments, or from time to time permanently reduce the unused portion of the Term A Loan Commitments; provided that (i) any such notice shall be received by the Agents not later than 11:00 a.m. five Business Days prior to the date of termination or reduction and (ii) any such partial reduction shall be in an aggregate amount of $5,000,000 or any whole multiple of $1,000,000 in excess thereof. The Administrative Agent will promptly notify the U.S. Sub-facility Lenders with Term A Loan Commitments of any such notice of termination or reduction of the unused Term A Loan Commitments. Any reduction pursuant to this clause (b) shall be applied to the unused Term A Loan Commitment of each Lender according to its pro rata share thereof. All fees accrued until the effective date of any termination of the unused Term A Loan Commitment shall be paid on the effective date of such termination. The entire Term A Commitment with respect to the Delayed Draw Sub-facility shall automatically terminate on the Delayed Draw Expiration Date.

2.07 Repayment of Loans.

(a) Each Borrower shall repay to the Lenders on the Maturity Date the aggregate principal amount of Committed Loans made to such Borrower outstanding on such date. Each Borrower incorporated under the Laws of Australia shall repay each Australian Revolving Loan on the earlier to

 

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occur of (i) the last day of the applicable Interest Period and (ii) the Maturity Date unless if all or any part of such Australian Revolving Loan is to be redrawn on the last day of the applicable Interest Period, then on such last day, such Borrower (subject to the conditions to all Credit Extensions referred to in Section 4.02) will not be obliged to repay and the applicable Lenders will not be obliged to make available, the amount of such Revolving Loan which is being redrawn.

(b) The Company shall repay each Swing Line Loan on the earlier to occur of (i) the date ten Business Days after such Loan is made and (ii) the Maturity Date.

(c) (i) Prior to the Delayed Draw Borrowing Date, the Company shall repay the principal amount of the Term A Loan in equal installments of $2,500,000 on the last Business Day of each March, June, September and December, commencing on June 30, 2008.

(ii) After the Delayed Draw Borrowing Date, the Company shall repay the principal amount of the Term A Loans to the U.S. Sub-facility Lenders with Term A Loan Commitments on the last Business Day of each March, June, September and December, commencing with the fiscal quarter ending March 31, 2012 in the applicable quarterly amortization amounts corresponding to the period in which such Business Day occurs as described in the table set forth below:

 

Applicable Period		Percentage of the principal amount of the Term A Loans immediately after giving effect to the funding on the Delayed Draw Borrowing Date
March 31, 2012 through and including December 31, 2013		1.25%
March 31, 2014 through and including December 31, 2015		2.50%
March 31, 2016 through and including June 30, 2016		3.75%
Maturity Date		Remaining outstanding balance

(d) The Company shall make a prepayment to be applied (i) first, to the remaining outstanding Term A Loans in the inverse order of maturity, until paid in full, (ii) second, to permanently reduce the unused portion of the Term A Loan Commitments (if any) with respect to the Delayed Draw Sub-facility, and then (iii) ratably to the Revolving Credit Facilities until paid in full upon the occurrence of any of the following (each a “Mandatory Prepayment Event”) at the following times and, without duplication, in the following amounts:

(A) Concurrently with the receipt by any Loan Party of any Net Cash Proceeds from any Disposition (other than a sale-leaseback transaction) in excess of $10,000,000 in the aggregate after the Third Amendment Effective Date (other than Dispositions of the type described in clauses (a), (b), (d), or (g), or, with respect to Dispositions of equipment only, clause (c)(i), of Section 7.05), in an amount equal to 100% of such Net Cash Proceeds, unless the asset so Disposed of is replaced within one hundred eighty (180) days with an asset performing the same or a similar function; provided, however, that such 180 day period may be extended to 365

 

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days if, prior to the expiration of such 180 day period, the Company or the applicable Subsidiary provides the Administrative Agent with a commitment to so replace such asset in form and substance satisfactory to the Administrative Agent.

(B) With respect to the receipt by any Loan Party of any Net Cash Proceeds from any issuance of capital stock of any Loan Party (excluding (x) any issuance of capital stock pursuant to any employee, officer or director option program, benefit plan or compensation program and (y) any issuance by a Subsidiary to the Company or another Subsidiary), if, before giving effect to the issuance of such capital stock, the Consolidated Leverage Ratio is greater than 2.50:1.00, then the Company must, within one hundred eighty (180) days after the issuance of such capital stock, either (A) execute definitive documentation acceptable to the Administrative Agent in its reasonable discretion to use such Net Cash Proceeds to make a Permitted Acquisition, or (B) make a prepayment in the amount of 100% of such Net Cash Proceeds. If, however, before giving effect to the issuance of such capital stock, the Consolidated Leverage Ratio is less than or equal to 2.50:1.00, then a Mandatory Prepayment Event shall not be deemed to have occurred.

(C) Concurrently with the receipt by any Loan Party of any Net Cash Proceeds from any issuance of any Indebtedness in excess of $10,000,000 in the aggregate after the Third Amendment Effective Date (other than Indebtedness permitted pursuant to Section 7.03) of any Loan Party, in an amount equal to 100% of such Net Cash Proceeds.

(D) Concurrently with the receipt by any Loan Party of any Net Cash Proceeds from any insurance claim or condemnation award in excess of $10,000,000 in the aggregate after the Third Amendment Effective Date, in an amount equal to 100% of such Net Cash Proceeds (unless the Company and its Subsidiaries have, within one hundred eighty (180) days of the receipt of such Net Cash Proceeds, executed definitive documentation acceptable to the Administrative Agent in its reasonable discretion to use such Net Cash Proceeds to invest in like assets); provided, however, that such 180 day period may be extended to 365 days if, prior to the expiration of such 180 day period, the Company or the applicable Subsidiary provides the Administrative Agent with a commitment to so invest in like assets in form and substance satisfactory to the Administrative Agent.

(e) Concurrently with the receipt by any Loan Party of any Net Cash Proceeds from any sale-leaseback transaction, the Company shall make a prepayment in the amount of 100% of such Net Proceeds to be applied ratably to the Revolving Credit Facilities until paid in full.

2.08 Interest.

(a) Subject to the provisions of subsection (b) below, (i) each Eurocurrency Rate Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurocurrency Rate for such Interest Period plus the Applicable Rate plus (in the case of a Eurocurrency Rate Loan of any Lender which is lent from a Lending Office in the United Kingdom or a Participating Member State) the Mandatory Cost; (ii) each BBSY Loan shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the BBSY Rate for such Interest Period plus the Applicable Rate; (iii) each Base Rate Committed Loan shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate; and (iv) each Swing Line Loan shall bear interest on the

 

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outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate.

(b) (i) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

(ii) If any amount (other than principal of any Loan) payable by any Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders, such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

(iii) Upon the request of the Required Lenders, while any Event of Default exists, the Borrowers shall pay interest on the principal amount of all outstanding Obligations hereunder at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

(iv) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

2.09 Fees.

In addition to certain fees described in subsections (i) and (j) of Section 2.03:

(a) Commitment Fees. The Company shall pay to the Administrative Agent for the account of each U.S. Sub-facility Lender with a U.S. Revolving Commitment in accordance with its Applicable Percentage, a commitment fee in Dollars equal to the Applicable Rate times the actual daily amount by which the Aggregate U.S. Revolving Commitments exceed the sum of (i) the Outstanding Amount of Committed Loans drawn under the U.S. Revolving Sub-facility and (ii) the Outstanding Amount of L/C Obligations in respect of the U.S. Revolving Sub-facility; provided, however, that Swing Line Loans shall not be considered Committed Loans for purposes of calculating the commitment fee under this Section 2.09(a). The Australian Borrower shall pay to the Australian Administrative Agent for the account of each Australian Sub-facility Lender in accordance with its Applicable Percentage, a commitment fee in Dollars equal to the Applicable Rate times the actual daily amount by which the Aggregate Australian Revolving Commitments exceed the sum of (x) the Outstanding Amount of Committed Loans drawn under the Australian Revolving Sub-facility and (y) the Outstanding Amount of L/C Obligations in respect of the Australian Revolving Sub-facility. The commitment fees shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on

 

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the last day of the Availability Period. The commitment fees shall be calculated quarterly in arrears, and if there is any change in the Applicable Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect.

(b) Delayed Draw Fees. The Company, in consideration of the Term A Loan Commitments of the U.S. Sub-facility Lenders to make Term A Loans on the Delayed Draw Borrowing Date, agrees to pay to the Administrative Agent, for the ratable benefit of each of the U.S. Sub-facility Lenders holding such Term A Loan Commitments (as identified on Schedule I attached to the Third Amendment or each applicable Assignment and Assumption recorded in the Register), a fee at a rate of 0.50% per annum on the aggregate daily amount of the unused portion of such Term A Loan Commitments (the “Delayed Draw Unused Fee”) during the period from and including the date that is thirty (30) days after the Third Amendment Effective Date to but excluding the Delayed Draw Expiration Date. Accrued Delayed Draw Unused Fees shall be payable in arrears on the Delayed Draw Expiration Date and thereafter, on demand.

(c) Other Fees. (i) The Company shall pay to the Arranger and the Administrative Agent for their own respective accounts, in Dollars, fees in the amounts and at the times specified in the Fee Letter. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

(ii) The Company shall pay to the Lenders, in Dollars, such fees as shall have been separately agreed upon in writing in the amounts and at the times so specified. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

2.10 Computation of Interest and Fees; Retroactive Adjustments of Applicable Rate.

(a) All computations of interest for Base Rate Loans shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All computation of interest for BBSY Loans shall be made on the basis of a 365-day year and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section 2.12(a), bear interest for one day. Each determination by the applicable Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

(b) If, as a result of any restatement of or other prior-period adjustment to the financial statements of the Company or for any other reason, the Company or the Lenders determine that (i) the Consolidated Leverage Ratio as calculated by the Company as of any applicable date was inaccurate and (ii) a proper calculation of the Consolidated Leverage Ratio would have resulted in higher pricing for such period, each Borrower shall immediately and retroactively be obligated to pay to the applicable Agent for the account of the applicable Lenders, promptly on demand by such Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code of the United States, automatically and without further action by either Agent, any Lender or either L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This

 

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paragraph shall not limit the rights of either Agent, any Lender or either L/C Issuer, as the case may be, under Section 2.03(c)(iii), 2.03(i) or 2.08(b) or under Article VIII. The Borrowers’ obligations under this paragraph shall survive the termination of the Aggregate Commitments and the repayment of all other Obligations hereunder.

2.11 Evidence of Debt.

(a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the applicable Agent in the ordinary course of business. The accounts or records maintained by the applicable Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrowers and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrowers hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the applicable Agent in respect of such matters, the accounts and records of such Agent shall control in the absence of manifest error. Upon the request of any Lender to a Borrower made through the applicable Agent, such Borrower shall execute and deliver to such Lender (through such Agent) a Note, which shall evidence such Lender’s Loans to such Borrower in addition to such accounts or records. Each Lender may attach schedules to a Note and endorse thereon the date, Type (if applicable), amount, currency and maturity of its Loans and payments with respect thereto.

(b) In addition to the accounts and records referred to in subsection (a), each Lender and the applicable Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit and Swing Line Loans. In the event of any conflict between the accounts and records maintained by such Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of such Agent shall control in the absence of manifest error.

2.12 Payments Generally; Agents’ Clawback.

(a) General. All payments to be made by the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein and except with respect to principal of and interest on Loans denominated in Australian Dollars, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date specified herein. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder with respect to principal and interest on Loans denominated in Australian Dollars shall be made to the Australian Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Australian Administrative Agent’s Office in Australian Dollars and in Same Day Funds not later than the Applicable Time specified by the Australian Administrative Agent on the dates specified herein. Without limiting the generality of the foregoing, the Administrative Agent may require that any payments due under this Agreement be made in the United States. If, for any reason, any Borrower is prohibited by any Law from making any required payment hereunder in Australian Dollars, such Borrower shall make such payment in Dollars in the Dollar Equivalent of the Australian Dollar payment amount. The applicable Agent will promptly distribute to each applicable Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All

 

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payments received by the applicable Agent (i) after 2:00 p.m., in the case of payments in Dollars, or (ii) after the Applicable Time specified by the Australian Administrative Agent in the case of payments in Australian Dollars, shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by any Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.

(b) (i) Funding by Lenders; Presumption by Agents. Unless the applicable Agent shall have received notice from a Lender prior to the proposed date of any Committed Borrowing of Eurocurrency Rate Loans or BBSY Loans (or, in the case of any Committed Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Committed Borrowing) that such Lender will not make available to such Agent such Lender’s share of such Committed Borrowing, such Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Committed Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Committed Borrowing available to the applicable Agent, then the applicable Lender and the applicable Borrower severally agree to pay to such Agent forthwith on demand such corresponding amount in Same Day Funds with interest thereon, for each day from and including the date such amount is made available to such Borrower to but excluding the date of payment to such Agent, at (A) in the case of a payment to be made by such Lender, the Overnight Rate, plus any administrative, processing or similar fees customarily charged by such Agent in connection with the foregoing, and (B) in the case of a payment to be made by such Borrower, the interest rate applicable to Base Rate Loans. If such Borrower and such Lender shall pay such interest to such Agent for the same or an overlapping period, such Agent shall promptly remit to such Borrower the amount of such interest paid by such Borrower for such period. If such Lender pays its share of the applicable Committed Borrowing to the applicable Agent, then the amount so paid shall constitute such Lender’s Committed Loan included in such Committed Borrowing. Any payment by such Borrower shall be without prejudice to any claim such Borrower may have against a Lender that shall have failed to make such payment to the applicable Agent.

(ii) Payments by Borrowers; Presumptions by Agents. Unless the applicable Agent shall have received notice from a Borrower prior to the date on which any payment is due to such Agent for the account of the Lenders or the applicable L/C Issuer hereunder that such Borrower will not make such payment, such Agent may assume that such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if such Borrower has not in fact made such payment, then each of the Lenders or such L/C Issuer, as the case may be, severally agrees to repay to such Agent forthwith on demand the amount so distributed to such Lender or such L/C Issuer, in Same Day Funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to such Agent, at the Overnight Rate.

A notice of either Agent to any Lender or Borrower with respect to any amount owing under this subsection (b) shall be conclusive, absent manifest error.

(c) Failure to Satisfy Conditions Precedent. If any Lender makes available to the applicable Agent funds for any Loan to be made by such Lender to any Borrower as provided in the foregoing provisions of this Article II, and such funds are not made available to such Borrower by such Agent

 

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because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, such Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

(d) Obligations of Lenders Several. The obligations of the Lenders hereunder to make Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.04(c) are several and not joint. The failure of any Lender to make any Committed Loan, to fund any such participation or to make any payment under Section 10.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Committed Loan, to purchase its participation or to make its payment under Section 10.04(c).

(e) Funding Source. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

2.13 Sharing of Payments by Lenders.

If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of the Committed Loans made by it, or the participations in L/C Obligations or in Swing Line Loans held by it resulting in such Lender’s receiving payment of a proportion of the aggregate amount of such Committed Loans or participations and accrued interest thereon greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (a) notify the applicable Agent of such fact, and (b) purchase (for cash at face value) participations in the Committed Loans and subparticipations in L/C Obligations and Swing Line Loans of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Committed Loans and other amounts owing them, provided that:

(i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

(ii) the provisions of this Section shall not be construed to apply to (x) any payment made by a Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Committed Loans or subparticipations in L/C Obligations or Swing Line Loans to any assignee or participant, other than to the Company or any Subsidiary thereof (as to which the provisions of this Section shall apply).

Each Loan Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against such Loan Party rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Loan Party in the amount of such participation.

 

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2.14 Designated Borrowers.

(a) The Company may at any time, upon not less than 15 Business Days’ notice from the Company to the applicable Agent (or such shorter period as may be agreed by such Agent in its sole discretion), designate any additional Subsidiary of the Company (an “Applicant Borrower”) as a Designated Borrower to receive Loans hereunder by delivering to the applicable Agent (which shall promptly deliver counterparts thereof to each applicable Lender) a duly executed notice and agreement in substantially the form of Exhibit H (a “Designated Borrower Request and Assumption Agreement”). The parties hereto acknowledge and agree that prior to any Applicant Borrower becoming entitled to utilize the credit facilities provided for herein the applicable Agent and the applicable Lenders shall have received such supporting resolutions, incumbency certificates, opinions of counsel and other documents or information, in form, content and scope reasonably satisfactory to the applicable Agent, as may be required by the applicable Agent or the Required Lenders in their sole discretion, and Notes signed by such new Borrowers to the extent any Lenders so require. If the Agents and the Required Lenders agree that an Applicant Borrower shall be entitled to receive Loans hereunder, then promptly following receipt of all such requested resolutions, incumbency certificates, opinions of counsel and other documents or information, the applicable Agent shall send a notice in substantially the form of Exhibit I (a “Designated Borrower Notice”) to the Company and the Lenders specifying the effective date upon which the Applicant Borrower shall constitute a Designated Borrower for purposes hereof, whereupon each of the Lenders agrees to permit such Designated Borrower to receive Loans hereunder, on the terms and conditions set forth herein, and each of the parties agrees that such Designated Borrower otherwise shall be a Borrower for all purposes of this Agreement; provided that (a) no Committed Loan Notice or Letter of Credit Application may be submitted by or on behalf of such Designated Borrower until the date five Business Days after such effective date, (b) only the Company may receive Term A Loans and only the Company and Designated Borrowers organized under the laws of Luxembourg, the Netherlands, the United States, or the United Kingdom may receive U.S. Revolving Loans, and (c) only the Australian Borrower and Designated Borrowers incorporated under the laws of Australia may receive Australian Revolving Loans.

(b) The Obligations of the Company and each Designated Borrower that is a Domestic Subsidiary shall be joint and several in nature. The Obligations of the Australian Borrower and each Designated Borrower that is a Foreign Subsidiary shall be several in nature.

(c) Each Subsidiary of the Company that becomes a “Designated Borrower” pursuant to this Section 2.14 hereby irrevocably appoints the Company as its agent for all purposes relevant to this Agreement and each of the other Loan Documents, including (i) the giving and receipt of notices, (ii) the execution and delivery of all documents, instruments and certificates contemplated herein and all modifications hereto, and (iii) the receipt of the proceeds of any Loans made by the Lenders to any such Designated Borrower hereunder. Any acknowledgment, consent, direction, certification or other action which might otherwise be valid or effective only if given or taken by all Borrowers, or by each Borrower acting singly, shall be valid and effective if given or taken only by the Company, whether or not any such other Borrower joins therein. Any notice, demand, consent, acknowledgement, direction, certification or other communication delivered to the Company in accordance with the terms of this Agreement shall be deemed to have been delivered to each Designated Borrower.

 

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(d) The Company may from time to time, upon not less than 15 Business Days’ notice from the Company to the Agents (or such shorter period as may be agreed by the Agents in their sole discretion), terminate a Designated Borrower’s status as such, provided that there are no outstanding Loans payable by such Designated Borrower, or other amounts payable by such Designated Borrower on account of any Loans made to it, as of the effective date of such termination. The Administrative Agent will promptly notify the Lenders of any such termination of a Designated Borrower’s status.

2.15 Increase in Commitments.

(a) Request for Increase. Provided there exists no Default, upon notice to the Administrative Agent (which shall promptly notify the Lenders), the Company may from time to time, request an increase in the U.S. Revolving Commitment by an amount (for all such requests) not exceeding $100,000,000; provided that (i) any such request for an increase shall be in a minimum amount of $25,000,000, and (ii) the Company may make a maximum of three such requests. At the time of sending such notice, the Company (in consultation with the Administrative Agent) shall specify the time period within which each U.S. Sub-facility Lender is requested to respond (which shall in no event be less than ten Business Days from the date of delivery of such notice to the Lenders).

(b) Lender Elections to Increase. Each U.S. Sub-facility Lender shall notify the Administrative Agent in writing within such time period whether or not it agrees to increase its U.S. Revolving Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase. Any U.S. Sub-facility Lender not responding in writing within such time period shall be deemed to have declined to increase its U.S. Revolving Commitment.

(c) Notification by Administrative Agent; Additional Lenders. The Administrative Agent shall notify the Company and each U.S. Sub-facility Lender of the U.S. Sub-facility Lenders’ responses to each request made hereunder. To achieve the full amount of a requested increase and subject to the approval of the Administrative Agent, the U.S. L/C Issuer and the Swing Line Lender (which approvals shall not be unreasonably withheld), the Company may also invite additional Eligible Assignees to become U.S. Sub-facility Lenders pursuant to a joinder agreement in form and substance satisfactory to the Administrative Agent and its counsel. The Arranger shall work on a best efforts basis to arrange for lenders to provide for such increase, with any arrangement fees to be agreed to between the Arranger, the Administrative Agent and the Company.

(d) Effective Date and Allocations. If the Aggregate Commitments are increased in accordance with this Section, the Administrative Agent and the Company shall determine the effective date (the “Increase Effective Date”) and the final allocation of such increase. The Administrative Agent shall promptly notify the Company and the Lenders of the final allocation of such increase and the Increase Effective Date.

(e) Conditions to Effectiveness of Increase. As a condition precedent to such increase, the Company shall deliver to the Administrative Agent a certificate of each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of such Loan Party (i) certifying and attaching the resolutions adopted by such Loan Party approving or consenting to such increase, and (ii) in the case of the Company, certifying that, before and after giving effect to such increase, (A) the representations and warranties contained in Article V and the other Loan

 

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Documents are true and correct on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Section 2.15, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01, and (B) no Default exists. The Borrowers shall prepay any Committed Loans outstanding on the Increase Effective Date (and pay any additional amounts required pursuant to Section 3.05) to the extent necessary to keep the outstanding Committed Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Commitments under this Section.

(f) Conflicting Provisions. This Section shall supersede any provisions in Section 2.13 or 10.01 to the contrary.

ARTICLE III.

TAXES, YIELD PROTECTION AND ILLEGALITY

3.01 Taxes.

(a) Payments Free of Taxes. Any and all payments by or on account of any obligation of the respective Borrowers hereunder or under any other Loan Document shall be made free and clear of and without reduction or withholding for any Indemnified Taxes or Other Taxes, provided that if the applicable Borrower shall be required by applicable Law to deduct any Indemnified Taxes (including any Other Taxes) from such payments, then (i) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section) the applicable Agent, Lender or L/C Issuer, as the case may be, receives an amount equal to the sum it would have received had no such deductions been made, (ii) such Borrower shall make such deductions and (iii) such Borrower shall timely pay the full amount deducted to the relevant Governmental Authority in accordance with applicable Law.

(b) Payment of Other Taxes by the Borrowers. Without limiting the provisions of subsection (a) above, each Borrower shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Law.

(c) Indemnification by the Borrowers. Each Borrower shall indemnify each Agent, each Lender and each L/C Issuer, within 10 days after demand therefor, for the full amount of any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section) paid by such Agent, Lender or L/C Issuer, as the case may be, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to a Borrower by a Lender or the applicable L/C Issuer (with a copy to the applicable Agent), or by the applicable Agent on its own behalf or on behalf of a Lender or L/C Issuer, shall be conclusive absent manifest error.

(d) Evidence of Payments. As soon as practicable after any payment of Indemnified Taxes or Other Taxes by any Borrower to a Governmental Authority, such Borrower shall deliver to each Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such

 

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payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to each Agent.

(e) Status of Lenders. Any Foreign Lender that is entitled to an exemption from or reduction of withholding tax under the law of the jurisdiction in which a Borrower is resident for tax purposes, or any treaty to which such jurisdiction is a party, with respect to payments hereunder or under any other Loan Document shall deliver to the Company (with a copy to each Agent), at the time or times prescribed by applicable Law or reasonably requested by the Company or either Agent, such properly completed and executed documentation prescribed by applicable Law as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if requested by the Company or either Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Company or such Agent as will enable the Company or such Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.

Without limiting the generality of the foregoing, in the event that a Borrower is resident for tax purposes in the United States, any Foreign Lender shall deliver to the Company and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the request of the Company or the Administrative Agent, but only if such Foreign Lender is legally entitled to do so), whichever of the following is applicable:

(i) duly completed copies of Internal Revenue Service Form W-8BEN claiming eligibility for benefits of an income tax treaty to which the United States is a party,

(ii) duly completed copies of Internal Revenue Service Form W-8ECI,

(iii) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not (A) a “bank” within the meaning of section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the applicable Borrower within the meaning of section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in section 881(c)(3)(C) of the Code and (y) duly completed copies of Internal Revenue Service Form W-8BEN, or

(iv) any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in United States Federal withholding tax duly completed together with such supplementary documentation as may be prescribed by applicable Law to permit the Company to determine the withholding or deduction required to be made.

Without limiting the obligations of the Lenders set forth above regarding delivery of certain forms and documents to establish each Lender’s status for U.S. withholding tax purposes, each Lender agrees promptly to deliver to the Administrative Agent or the Company, as the Administrative Agent or the Company shall reasonably request, on or prior to the Closing Date, and in a timely fashion thereafter, such other documents and forms required by any relevant taxing authorities under the Laws of any other jurisdiction, duly executed and completed by such Lender, as are required under such Laws to confirm such Lender’s entitlement to any available exemption from, or reduction of, applicable withholding taxes in respect of all payments to be made to such Lender outside of the U.S. by the Borrowers pursuant to this Agreement or otherwise to establish such Lender’s status for withholding tax purposes in such other

 

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jurisdiction. Each Lender shall promptly (i) notify the Administrative Agent of any change in circumstances which would modify or render invalid any such claimed exemption or reduction, and (ii) take such steps as shall not be materially disadvantageous to it, in the reasonable judgment of such Lender, and as may be reasonably necessary (including the re-designation of its Lending Office) to avoid any requirement of applicable Laws of any such jurisdiction that any Borrower make any deduction or withholding for taxes from amounts payable to such Lender. Additionally, each of the Borrowers shall promptly deliver to the Administrative Agent or any Lender, as the Administrative Agent or such Lender shall reasonably request, on or prior to the Closing Date, and in a timely fashion thereafter, such documents and forms required by any relevant taxing authorities under the Laws of any jurisdiction, duly executed and completed by such Borrower, as are required to be furnished by such Lender or the Administrative Agent under such Laws in connection with any payment by the Administrative Agent or any Lender of Taxes or Other Taxes, or otherwise in connection with the Loan Documents, with respect to such jurisdiction.

(f) Treatment of Certain Refunds. If either Agent, any Lender or either L/C Issuer determines, in its sole discretion, that it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been indemnified by any Borrower or with respect to which any Borrower has paid additional amounts pursuant to this Section, it shall pay to such Borrower an amount equal to such refund (but only to the extent of indemnity payments made, or additional amounts paid, by such Borrower under this Section with respect to the Indemnified Taxes or Other Taxes giving rise to such refund and to the extent that such refund can be made without prejudice to the retention of the relief), net of all out-of-pocket expenses of such Agent, Lender or L/C Issuer, as the case may be, and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund), provided, that each Borrower, upon the request of such Agent, Lender or L/C Issuer, agrees to repay the amount paid over to such Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent, Lender or L/C Issuer in the event such Agent, Lender or L/C Issuer is required to repay such refund to such Governmental Authority. This subsection shall not be construed to require either Agent, any Lender or either L/C Issuer to make available its tax returns (or any other information relating to its taxes that it deems confidential) to any Borrower or any other Person.

(g) Tax Benefit. If either Agent, any Lender or either L/C Issuer determines, in its sole discretion, that its current obligation to pay Taxes (other than estimated Taxes) has been reduced or that it has received a refund it would otherwise not have received (a “Tax Reduction”) as a result of a Tax credit or other Tax benefit in connection with any deduction, withholding or payment of Tax that gives rise to the payment by a Borrower of Indemnified Taxes or Other Taxes pursuant to this Section 3.01, then such Agent, Lender or L/C Issuer shall, to the extent that it can do so, in its sole discretion, without prejudice to its retention of such Tax credit or benefit and without any other adverse Tax consequences to it, pay such Borrower the amount of the Tax Reduction as such Agent, Lender or L/C Issuer shall, in its sole discretion, have determined to be attributable to the relevant credit deduction, withholding or payment of Tax and as will leave such Agent, Lender or L/C Issuer in no better or worse position than it would have been in if there had been no such credit deduction, withholding or payment of Tax; provided that such Borrower, upon the request of such Agent, Lender or L/C Issuer, agrees in writing (in a form acceptable to such Agent, Lender or L/C Issuer in its sole discretion) to repay the amount paid over to such Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Agent, Lender or L/C Issuer in the event such Agent, Lender or L/C Issuer is required to repay such Tax credit or other Tax benefit or such Tax credit or other Tax benefit no longer results in a Tax Reduction (on a cumulative basis) of such Agent’s, Lender’s or L/C Issuer’s Taxes; provided further, however, that

 

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this Section 3.01(g) shall not apply if a Default has occurred and is continuing or if there has been an Event of Default. This subsection shall not be construed to require either Agent, any Lender or any L/C Issuer to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to any Borrower or any other Person.

3.02 Illegality.

If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Eurocurrency Rate Loans or BBSY Loans (whether denominated in Dollars or Australian Dollars), or to determine or charge interest rates based upon the Eurocurrency Rate or BBSY Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars or Australian Dollars in the applicable interbank market, then, on notice thereof by such Lender to the Company through the applicable Agent, any obligation of such Lender to make or continue Eurocurrency Rate Loans or BBSY Loans, as the case may be, in the affected currency or currencies or, in the case of Eurocurrency Rate Loans in Dollars, to convert Base Rate Committed Loans to Eurocurrency Rate Loans, shall be suspended until such Lender notifies such Agent and the Company that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, the Borrowers shall, upon demand from such Lender (with a copy to the applicable Agent), prepay or, if applicable and such Loans are denominated in Dollars, convert all such Eurocurrency Rate Loans of such Lender to Base Rate Loans, either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurocurrency Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurocurrency Rate Loans. Upon any such prepayment or conversion, the Borrowers shall also pay accrued interest on the amount so prepaid or converted.

3.03 Inability to Determine Rates.

If the Required Lenders determine that for any reason in connection with any request for a Eurocurrency Rate Loan or BBSY Loan or a conversion to or continuation thereof that (a) deposits (whether in Dollars or Australian Dollars) are not being offered to banks in the applicable offshore interbank market for such currency for the applicable amount and Interest Period of such Eurocurrency Rate Loan or BBSY Loan, (b) adequate and reasonable means do not exist for determining the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan, (c) adequate and reasonable means do not exist for determining the BBSY Rate for any requested Interest Period with respect to a proposed BBSY Loan, (d) the Eurocurrency Rate for any requested Interest Period with respect to a proposed Eurocurrency Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Eurocurrency Rate Loan, or (e) the BBSY Rate for any requested Interest Period with respect to a proposed BBSY Loan does not adequately and fairly reflect the cost to such Lenders of funding such BBSY Loan, the applicable Agent will promptly so notify the Company and each Lender. Thereafter, the obligation of the Lenders to make or maintain Eurocurrency Rate Loans or BBSY Loans, as the case may be, in the affected currency or currencies shall be suspended until the applicable Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Company may revoke any pending request for a Borrowing of, conversion to or continuation of Eurocurrency Rate Loans or BBSY Loans in the affected currency or currencies or, failing that, will be deemed to have converted such request into a request for a Committed Borrowing of Base Rate Loans in the amount specified therein.

 

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3.04 Increased Costs; Reserves on Eurocurrency Rate Loans.

(a) Increased Costs Generally. If any Change in Law shall:

(i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except (A) any reserve requirement reflected in the Eurocurrency Rate and (B) the requirements of the Bank of England and the Financial Services Authority or the European Central Bank reflected in the Mandatory Cost, other than as set forth below) or either L/C Issuer;

(ii) subject any Lender or either L/C Issuer to any tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any Eurocurrency Rate Loan or BBSY Loan made by it, or change the basis of taxation of payments to such Lender or L/C Issuer in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Lender or L/C Issuer);

(iii) result in the failure of the Mandatory Cost, as calculated hereunder, to represent the cost to any Lender of complying with the requirements of the Bank of England and/or the Financial Services Authority or the European Central Bank in relation to its making, funding or maintaining Eurocurrency Rate Loans; or

(iv) impose on any Lender or either L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurocurrency Rate Loans made by such Lender or any Letter of Credit or participation therein;

and the result of any of the foregoing shall be to increase the cost to such Lender of making or maintaining any Eurocurrency Rate Loan or BBSY Loan (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or such L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or L/C Issuer, the Company will pay (or cause the applicable Designated Borrower to pay) to such Lender or L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered.

(b) Capital Requirements. If any Lender or either L/C Issuer determines that any Change in Law affecting such Lender or L/C Issuer or any Lending Office of such Lender or such Lender’s or such L/C Issuer’s holding company, if any, regarding capital requirements has or would have the effect of reducing the rate of return on such Lender’s or such L/C Issuer’s capital or on the capital of such Lender’s or such L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such L/C Issuer, to a level below that which such Lender or L/C Issuer or such Lender’s or such L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or L/C Issuer’s policies and the policies of such Lender’s or L/C Issuer’s holding company with respect to capital adequacy), then from time to time the Company will pay (or

 

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cause the applicable Designated Borrower to pay) to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company for any such reduction suffered.

(c) Certificates for Reimbursement. A certificate of a Lender or L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or L/C Issuer or its holding company, as the case may be, as specified in subsection (a) or (b) of this Section and delivered to the Company shall be conclusive absent manifest error. The Company shall pay (or cause the applicable Designated Borrower to pay) such Lender or L/C Issuer, as the case may be, the amount shown as due on any such certificate within 10 days after receipt thereof.

(d) Delay in Requests. Failure or delay on the part of any Lender or either L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section shall not constitute a waiver of such Lender’s or L/C Issuer’s right to demand such compensation, provided that no Borrower shall be required to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of this Section for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or L/C Issuer, as the case may be, notifies the Company of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

(e) Additional Reserve Requirements. The Company shall pay (or cause the applicable Designated Borrower to pay) to each Lender, as long as such Lender shall be required to comply with any reserve ratio requirement or analogous requirement of any central banking or financial regulatory authority imposed in respect of the maintenance of the Commitments or the funding of the Eurocurrency Rate Loans or BBSY Loans, such additional costs (expressed as a percentage per annum and rounded upwards, if necessary, to the nearest five decimal places) equal to the actual costs allocated to such Commitment or Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan, provided the Company shall have received at least 10 days’ prior notice (with a copy to the applicable Agent) of such additional costs from such Lender. If a Lender fails to give notice 10 days prior to the relevant Interest Payment Date, such additional costs shall be due and payable 10 days from receipt of such notice.

3.05 Compensation for Losses.

Upon demand of any Lender (with a copy to the applicable Agent) from time to time, the Company shall promptly compensate (or cause the applicable Designated Borrower to compensate) such Lender for and hold such Lender harmless from any loss, cost or expense incurred by it as a result of:

(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);

 

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(b) any failure by any Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Company or the applicable Designated Borrower;

(c) any failure by any Borrower to make payment of any Loan or drawing under any Letter of Credit (or interest due thereon) on its scheduled due date or any payment thereof in a different currency; or

(d) any assignment of a Eurocurrency Rate Loan or BBSY Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Company pursuant to Section 10.13 or the operation of Section 10.19;

including any loss of anticipated profits, any foreign exchange losses and any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan, from fees payable to terminate the deposits from which such funds were obtained or from the performance of any foreign exchange contract. The Company shall also pay (or cause the applicable Designated Borrower to pay) any customary administrative fees charged by such Lender in connection with the foregoing.

For purposes of calculating amounts payable by the Company (or the applicable Designated Borrower) to the Lenders under this Section 3.05, each Lender shall be deemed to have funded each Eurocurrency Rate Loan and BBSY Loan made by it at the Eurocurrency Base Rate or the BBSY Rate, as the case may be, used in determining the Eurocurrency Rate or the BBSY Rate, as the case may be, for such Loan by a matching deposit or other borrowing in the offshore interbank market for such currency for a comparable amount and for a comparable period, whether or not such Eurocurrency Rate Loan or BBSY Loan, as the case may be, was in fact so funded.

3.06 Mitigation Obligations; Replacement of Lenders.

(a) Designation of a Different Lending Office. If any Lender requests compensation under Section 3.04, or any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, or if any Lender gives a notice pursuant to Section 3.02, then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 3.01 or 3.04, as the case may be, in the future, or eliminate the need for the notice pursuant to Section 3.02, as applicable, and (ii) in each case, would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Company hereby agrees to pay (or to cause the applicable Designated Borrower to pay) all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

(b) Replacement of Lenders. If any Lender requests compensation under Section 3.04, or if any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, the Company may replace such Lender in accordance with Section 10.13.

 

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3.07 Survival.

All of the Borrowers’ obligations under this Article III shall survive termination of the Aggregate Commitments and repayment of all other Obligations hereunder.

ARTICLE IV.

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

4.01 Conditions of Initial Credit Extension.

The obligation of each L/C Issuer and each Lender to make its initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:

(a) With respect to the initial Credit Extensions under the U.S. Sub-facility, the Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (or, in the case of a Loan Party incorporated under the Laws of Australia, by two directors, a director and a secretary, or an attorney appointed by such Loan Party), each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to each Agent and each of the Lenders:

(i) executed counterparts of this Agreement, sufficient in number for distribution to each Agent, each Lender and the Company and executed counterparts of each other Loan Document (other than the Loan Documents referred to in clause (b), below), sufficient in number for distribution to each Agent and the Company;

(ii) Notes executed by the Company in favor of each U.S. Sub-facility Lender requesting Notes in the form of Exhibit C-1 and Exhibit C-2;

(iii)(A) in the case of a Loan Party organized under the Laws of any jurisdiction other than Australia, such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof authorized to act as a Responsible Officer in connection with this Agreement and the other Loan Documents to which such Loan Party is a party, and (B) in the case of a Loan Party organized under the Laws of Australia, a certificate in relation to the Loan Party given by a director of the Loan Party substantially in the form of Exhibit K attached hereto, including all necessary attachments, dated not earlier than seven (7) days before the Closing Date;

(iv) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, and that each of the Company, the Australian Borrower and each Subsidiary Guarantor is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect;

 

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(v) an opinion of Jones Day, counsel to the Company and certain Loan Parties, addressed to each Agent and each Lender, as to the matters set forth in Exhibit J and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;

(vi) an opinion of special Kentucky counsel to the Company and certain Loan Parties reasonably satisfactory to the Administrative Agent, addressed to each Agent and each Lender, as to the matters set forth in Exhibit J and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;

(vii) an opinion of special Michigan counsel to the Company and certain Loan Parties reasonably satisfactory to the Administrative Agent, addressed to each Agent and each Lender, as to the matters set forth in Exhibit J and such other matters concerning the Loan Parties and the Loan Documents as the Required Lenders may reasonably request;

(viii) opinion of Allens Arthur Robinson, counsel to the Agents, addressed to the Agents and each Lender, as to the matters set forth in Exhibit J and such other matters concerning the parties to the documents referred to in clauses (i), (iii) and (iv), above, and those documents as the Required Lenders may reasonably request;

(ix) a certificate of a Responsible Officer of each Loan Party either (A) attaching copies of all consents, licenses and approvals required in connection with the execution, delivery and performance by such Loan Party of the Loan Documents to which it is a party, and such consents, licenses and approvals shall be in full force and effect, or (B) stating that no such consents, licenses or approvals are so required;

(x) a certificate signed by a Responsible Officer of the Company certifying (A) that the conditions specified in Sections 4.02(a) and (b) have been satisfied, (B) that there has been no event or circumstance since the date of the Audited Financial Statements, with respect to the Company and its Subsidiaries, or since June 30, 2007, with respect to the Australian Borrower and its Subsidiaries that has had or could be reasonably expected to have, either individually or in the aggregate, a Material Adverse Effect; and (C) a calculation of the Consolidated Leverage Ratio as of September 30, 2007 on a pro forma basis adjusted to give effect to the consummation of the Acquisition and the financings contemplated hereby as if such transactions had occurred on such date;

(xi) a duly completed Compliance Certificate as of the last day of the fiscal quarter of the Company ended on September 30, 2007, on a pro forma basis adjusted to give effect to the consummation of the Acquisition and the financings contemplated hereby as if such transactions had occurred on such date, signed by a Responsible Officer of the Company;

(xii) a pro forma consolidated balance sheet, income statement and cash flow statement of the Company and its Subsidiaries as of September 30, 2007, adjusted to give effect to the consummation of the Acquisition and the financings contemplated hereby as if such transactions had occurred on such date, consistent in all material respects with the sources and uses of cash as previously described to the Administrative Agent and the forecasts previously provided to the Administrative Agent;

 

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(xiii) Subordination Agreements with respect to all Subordinated Debt, if any;

(xiv) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with endorsements naming the applicable Agent, on behalf of the applicable Lenders, as an additional insured or loss payee, as the case may be, under all such insurance policies;

(xv) evidence that the Existing Credit Agreement has been or concurrently with the Closing Date is being terminated and all Liens securing obligations under the Existing Credit Agreement have been or concurrently with the Closing Date are being released;

(xvi) a perfection certificate completed and executed by the Company with respect to each Loan Party and all documents and instruments required to perfect each applicable Agent’s security interest in the Collateral (including title documents and signed blank transfer forms);

(xvii) certified copies of tax, judgment and Uniform Commercial Code search reports in each relevant jurisdiction dated a date reasonably near to the Closing Date, listing all effective financing statements which name any Loan Party (under their present names and any previous names) as debtors, together with (a) copies of such financing statements, (b) payoff letters evidencing repayment in full of all Indebtedness to be repaid, the termination of all agreements relating thereto and the release of all Liens granted in connection therewith, with Uniform Commercial Code or other appropriate termination statements and documents effective to evidence the foregoing (other than Liens permitted by Section 7.01) and (c) such other Uniform Commercial Code termination statements as the Administrative Agent may reasonably request;

(xviii) any landlord waivers and access letters reasonably requested by the Administrative Agent with respect to real property interests of the Company and its Subsidiaries;

(xix) each document (including Uniform Commercial Code financing statements) required by the Loan Documents or under law or reasonably requested by either Agent to be filed, registered or recorded in order to create in favor of such Agent, for the benefit of the applicable Lenders, a perfected Lien on the collateral described therein, prior to any other Liens (subject only to Liens permitted pursuant to Section 7.01), in proper form for filing, registration or recording with all filing and recording fees and taxes duly paid;

(xx) consolidated audited financial statements of the Australian Borrower and its Subsidiaries for the fiscal years ended June 30, 2005, June 30, 2006, and June 30, 2007, and consolidated unaudited financial statements of the Australian Borrower for the three months ended September 30, 2007;

(xxi) evidence that the Acquisition has closed or will close simultaneously on the Closing Date; and

(xxii) such other assurances, certificates, documents, consents or opinions as the Agents, the L/C Issuers, the Swing Line Lender or the Required Lenders reasonably may require.

 

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(b) With respect to the initial Credit Extensions under the Australian Sub-facility, the Australian Administrative Agent’s receipt of the following, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by two directors, a director and a secretary, or an attorney appointed by the signing Loan Party, each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and each in form and substance satisfactory to each Agent and each of the Lenders:

(i) Notes executed by the Australian Borrower in favor of each Australian Sub-facility Lender requesting Notes in the form of Exhibit C-3;

(ii) a duly executed counterpart of an accession deed to the Australian Deed of Guarantee and Indemnity executed by each of Magnus Donners Pty Limited, Collotype International Holdings Pty Limited, Collotype Labels Pty Limited, Collotype iPack Pty Limited, Barossa Printmasters Pty Limited, Ever-Redi Press Pty Limited, Collotype Labels International Pty Limited, Collotype BSM Pty Limited, Colourcraft Labels Pty Limited and Nationwide Labels Pty Limited in the form of the annexure to the Australian Deed of Guarantee and Indemnity;

(iii) a duly executed counterpart of a deed of charge executed by each of Magnus Donners Pty Limited, Collotype Labels Pty Limited, Collotype iPack Pty Limited and Ever-Redi Press Pty Limited in favor of the Australian Administrative Agent in its own capacity and as agent for the Australian Sub-facility Lenders substantially in the form of the deed of charge referred to in clause (f) of the definition of Australian Security Documents;

(iv) a duly executed counterpart of a share mortgage executed by Collotype Labels International Pty Limited in favor of the Australian Administrative Agent in its own capacity and as agent for the Australian Sub-facility Lenders in respect of the entire share capital in Collotype Labels International (RSA) Pty Limited in form and substance satisfactory to the Australian Administrative Agent;

(v) a certificate given by a director of each of each of Magnus Donners Pty Limited, Collotype International Holdings Pty Limited, Collotype Labels Pty Limited, Collotype iPack Pty Limited, Barossa Printmasters Pty Limited, Ever-Redi Press Pty Limited, Collotype Labels International Pty Limited, Collotype BSM Pty Limited, Colourcraft Labels Pty Limited and Nationwide Labels Pty Limited substantially in the form of Exhibit K with the attachments referred to and dated not earlier than the later of the date of completion of the Acquisition and the date which is seven (7) days before the date of the documents referred to in clauses (i) to (iv), above;

(vi) evidence that the documents referred to in clauses (iii) and (iv), above, have been provisionally registered by the Australian Securities and Investments Commission or the Australian Administrative Agent or its counsel has been provided all necessary documents and funds required by them to attend to that registration;

(vii) if any of the document referred to in clauses (iii) and (iv), above, is dutiable, evidence that it has been duly stamped or the Australian Administrative Agent or its counsel has been provided the funds required by them to attend to that stamping; and

 

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(viii) an opinion of Allens Arthur Robinson, counsel to the Agents, addressed to the Agents and each Lender, as to the matters set forth in Exhibit J and such other matters concerning the parties to the documents referred to in clauses (i) to (iv), above, and those documents as the Required Lenders may reasonably request.

(c) Any fees required to be paid on or before the Closing Date shall have been paid.

(d) Unless waived by the applicable Agent or the Arranger, as the case may be, the Company shall have paid all fees, charges and disbursements of counsel to such Agent or the Arranger (directly to such counsel if requested by such Agent or the Arranger) to the extent invoiced prior to or on the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and such Agent or the Arranger).

(e) The Closing Date shall have occurred on or before March 31, 2008.

(f) The Agents shall have completed a due diligence investigation of the Australian Borrower and its Subsidiaries in scope, and with results, satisfactory to the Agents and shall have been given such access to the management, records, books of account, contracts and properties of the Australian Borrower and its Subsidiaries.

(g) The Agents shall be satisfied that no changes or developments shall have occurred, and no new or additional information, shall have been received or discovered by the Agents or the Lenders regarding the Borrowers or their Subsidiaries or the transactions contemplated hereby after December 7, 2007 that (A) either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect or (B) could reasonably be expected to adversely affect the Facilities or any other aspect of the transactions contemplated hereby, and nothing shall have come to the attention of the Lenders to lead them to believe that (x) the Confidential Information Memorandum dated December 2007 was or has become misleading, incorrect or incomplete in any material respect or (y) the transactions contemplated hereby will have a Material Adverse Effect.

(h) There shall not be any action, suit, investigation or proceeding pending or, to the knowledge of any Borrower, threatened in any court or before any arbitrator or governmental authority that could reasonably be expected to have a Material Adverse Effect.

Without limiting the generality of the provisions of the last paragraph of Section 9.03, for purposes of determining compliance with the conditions specified in this Section 4.01, each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

4.02 Conditions to all Credit Extensions.

 

 

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The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans to another Type, or a continuation of Eurocurrency Rate Loans or BBSY Loans) is subject to the following conditions precedent:

(a) The representations and warranties of (i) the Borrowers contained in Article V and (ii) each Loan Party contained in each other Loan Document or in any document furnished at any time under or in connection herewith or therewith, shall be true and correct on and as of the date of such Credit Extension, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct as of such earlier date, and except that for purposes of this Section 4.02, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 6.01.

(b) No Default shall exist, or would result from such proposed Credit Extension or the application of the proceeds thereof.

(c) The applicable Agent and, if applicable, the applicable L/C Issuer or the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.

(d) If the applicable Borrower is a Designated Borrower, then the conditions of Section 2.14 to the designation of such Borrower as a Designated Borrower shall have been met to the satisfaction of the applicable Agent.

(e) In the case of a Credit Extension to be denominated in Australian Dollars or any Alternative Currency, there shall not have occurred any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which in the reasonable opinion of the Australian Administrative Agent (in the case of any Credit Extension under the Australian Sub-facility) or the Administrative Agent (in the case of any Credit Extension under the U.S. Sub-facility), the Required Lenders, the Australian L/C Issuer or the U.S. L/C Issuer would make it impracticable for such Credit Extension to be denominated in Australian Dollars or such Alternative Currency.

Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Committed Loans to the other Type or a continuation of Eurocurrency Rate Loans) submitted by the Company shall be deemed to be a representation and warranty that the conditions specified in Sections 4.02(a) and (b) have been satisfied on and as of the date of the applicable Credit Extension.

4.03 Conditions of Credit Extension under Delayed Draw Sub-facility.

The obligation of each U.S. Sub-facility Lender with a Term A Loan Commitment to make its Term A Loan under the Delayed Draw Sub-facility is subject to satisfaction of the following conditions precedent (and to the extent applicable, each of which shall be originals or telecopies (followed promptly by originals) unless otherwise specified, each properly executed by a Responsible Officer of the signing Loan Party (or, in the case of a Loan Party incorporated under the Laws of Australia, by two directors, a director and a secretary, or an attorney appointed by such Loan Party), each dated the Delayed Draw

 

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Borrowing Date (or, in the case of certificates of governmental officials, a recent date before the Delayed Draw Borrowing Date) and each in form and substance satisfactory to each Agent and each of the Lenders):

(a) Receipt by the Administrative Agent of (i) counterparts of the Joinder to Guaranty and Collateral Agreement (in the form attached to the Guaranty and Collateral Agreement, or such other document or form that may be reasonably acceptable to the Administrative Agent), executed by each of the New Subsidiaries and such other U.S. Security Documents or other Loan Documents and instruments as either of the Agents shall reasonably request in order to evidence the continuing validity and perfection of the applicable Agent’s security interest in the Collateral or to evidence and perfect a security interest in assets of the New Subsidiaries that are of the type included in the Collateral, including title documents, signed blank transfer forms and any document (including Uniform Commercial Code financing statements or amendments to existing Uniform Commercial Code financing statements) required by the Loan Documents or under law or reasonably requested by either Agent to be filed, registered or recorded in order to create in favor of such Agent, for the benefit of the applicable Lenders, a perfected Lien on the Collateral described therein, prior to any other Liens (subject only to Liens permitted pursuant to Section 7.01), in proper form for filing, registration or recording with all filing and recording fees and taxes duly paid (it being understood and agreed that (A) the Excluded Kansas City Property shall not be included in the Collateral on the Delayed Draw Borrowing Date and any other Material Real Property shall only constitute part of the Collateral to the extent requested by the Administrative Agent on or before the date that is 60 days prior to the Delayed Draw Borrowing Date (it being agreed that any such Material Real Property requested less than sixty (60) days prior to the Delayed Draw Borrowing Date shall become party of the Collateral within sixty (60) days of such request (or such later time as may be determined by the Administrative Agent in its sole discretion) pursuant to Section 6.13), (B) the Loan Parties (including any New Subsidiaries that will become Loan Parties) shall not be required to take any action under the laws of the jurisdiction of incorporation or formation of any Immaterial First-Tier Foreign Subsidiary to perfect security interests in any Collateral consisting of Equity Interests issued by such Immaterial First-Tier Foreign Subsidiary) and (C) no Foreign Subsidiary (other than a Subsidiary (1) organized under the laws of Australia or any jurisdiction in which a Designated Borrower is organized or (2) that is a Designated Borrower) shall be required to guarantee or grant a security interest under the Loan Documents under this Section 4.03, (ii) certified copies of tax, judgment and Uniform Commercial Code search reports in each relevant jurisdiction dated a date reasonably near to the Delayed Draw Borrowing Date, listing all effective financing statements which name any New Subsidiary (under its present name and any previous names) as a debtor, together with (A) copies of such financing statements and (B) payoff letters evidencing repayment in full of all Indebtedness to be repaid (including, without limitation, all Indebtedness of Adhesion and its Subsidiaries), the termination of all agreements relating thereto and the release of all Liens granted in connection therewith, with Uniform Commercial Code or other appropriate termination statements and documents effective to evidence the foregoing (other than with respect to Liens permitted by Section 7.01), (iii) any landlord waivers and access letters reasonably requested by the Administrative Agent with respect to real property interests of Adhesion and its Subsidiaries and (iv) a perfection certificate completed and executed by the Company with respect to each Loan Party (including the New Subsidiaries that will become Loan Parties), (v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of the New Subsidiaries

 

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as the Administrative Agent may require evidencing the identity, authority and capacity of each Responsible Officer thereof that is authorized to act as Responsible Officer in connection with this Agreement and the other Loan Documents to which such New Subsidiary will be a party in each case attaching such documents (including all applicable Organization Documents) and certificates as the Administrative Agent may reasonably require to evidence that each such New Subsidiary is duly organized or formed, and that each of the New Subsidiaries is validly existing, in good standing and qualified to engage in business in each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification, except to the extent that the failure to be in good standing or so qualified could not reasonably be expected to have a Material Adverse Effect, (vi) customary opinions of counsel to the Loan Parties and the New Subsidiaries (which such opinions shall expressly permit reliance by successors and assignees of each Agent and each Lender) in form and substance reasonably satisfactory to the Administrative Agent, (vii) evidence that all insurance required to be maintained pursuant to the Loan Documents has been obtained and is in effect, together with endorsements naming the applicable Agent, on behalf of the applicable Lenders, as an additional insured or lender loss payee, as the case may be, under all such insurance policies (including coverage of the New Subsidiaries thereunder) and (viii) a certificate of a Responsible Officer of the Company and each New Subsidiary evidencing receipt of all governmental, shareholder and third party consents and approvals necessary or desirable in connection with the Adhesion Transactions, and/or of the expiration of all applicable waiting periods related thereto (including, without limitation, with respect to Hart-Scott-Rodino) without any action being taken by any authority that could restrain, prevent or impose any material adverse conditions on the Company or Adhesion or any of their respective Subsidiaries, or on the Adhesion Transactions, or that could seek or threaten any of the foregoing, and no law or regulation shall be applicable which could have such effect.

(b) Receipt of (i) evidence satisfactory to the Administrative Agent and the Joint Lead Arrangers that (A) the Adhesion Acquisition shall have been consummated (or shall be consummated substantially simultaneously with the Delayed Draw Borrowing Date and the funding of the second draw of the Term A Loan) in accordance with the terms of the Adhesion Acquisition Agreement in the form of the D&P Draft 8/25/2011 posted to the Multi-Color Corporation IntraLinks site on August 25, 2011, a copy of which shall be delivered to the Administrative Agent and the Lenders and certified by a Responsible Officer of the Company to be true, correct and complete in all respects, without giving effect to any amendments, modifications or waivers thereto except to the extent permitted pursuant to Section 7.13 and (B) at least 12.0% of the aggregate consideration (determined based upon the price per share used in determining the “Company Closing Stock Consideration” for purposes of and as defined in the Adhesion Acquisition Agreement) for the Adhesion Acquisition shall consist of common equity securities of the Company, and (ii) a copy, certified by a Responsible Officer of the Company as true, correct and complete, of the Adhesion Acquisition Documents (other than the Adhesion Acquisition Agreement), which shall be in form and substance reasonably satisfactory to the Administrative Agent and the Lenders.

(c) On the Delayed Draw Borrowing Date and after giving effect to the transactions contemplated under this Agreement (including the Adhesion Acquisition and the extensions of credit occurring on the Delayed Draw Borrowing Date), (i) there shall exist no Default, (ii) all of the representations and warranties in this Agreement and the other Loan Documents shall, after

 

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giving effect to the Adhesion Transactions, be true and correct in all material respects (or with respect to any such representation and warranty that is itself qualified by reference to materiality or Material Adverse Effect, in all respects) as of the Delayed Draw Borrowing Date (it being understood and agreed that the representations contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) respectively of Section 6.01 and, in the case of subsection (b) of Section 5.05, clauses (i) and (ii) of subsection (d) below and the representations in subsections (d) and (e) of Section 5.05 shall be deemed to refer to the pro forma financial statements and forecasts furnished pursuant to clauses (iii) and (iv) of subsection (d) below), and (iii) each of the representations made by Adhesion and/or the sellers (or their representative on their behalf) with respect to Adhesion and its Subsidiaries in the Adhesion Acquisition Agreement (without giving effect to any amendments, modifications or waivers thereto except to the extent permitted pursuant to Section 7.13) as are material to the interests of the Lenders shall be true and correct as of the Delayed Draw Borrowing Date (except to the extent such representations or warranties related to an earlier date in which case they shall be true and correct as of such earlier date), but only to the extent that the Company and its affiliates have the right to terminate their respective obligations under the Adhesion Acquisition Agreement as a result of the breach of such representations and warranties in the Adhesion Acquisition Agreement.

(d) The Administrative Agent and the Joint Lead Arrangers shall have received (i) the unaudited consolidated balance sheets and related consolidated statements of income and cash flows of the Company and its Subsidiaries for each fiscal quarter ending after December 31, 2010 but at least 45 days prior to the Delayed Draw Borrowing Date, (ii) to the extent available to the Company and in the form provided by Adhesion, the unaudited consolidated balance sheets and related consolidated statements of income and cash flows of Adhesion and its Subsidiaries for each fiscal quarter ending after December 31, 2010 but at least 45 days prior to the Delayed Draw Borrowing Date, (iii) a pro forma consolidated balance sheet and related pro forma consolidated statements of income and cash flows of the Company and its Subsidiaries (in each case after giving effect to the Adhesion Transactions) as of and for the four quarter period ending on the last day of the most recent four quarter period ending at least 45 days before the Delayed Draw Borrowing Date, prepared after giving effect to the Adhesion Transactions as if the Adhesion Transactions had occurred as of such date (in the case of such balance sheet) or at the beginning of such period (in the case of the other financial statements), together with a certificate of the chief financial officer of the Company to the effect that such financial statements accurately present the pro forma financial position of the Company and its Subsidiaries in accordance with GAAP and Regulation S-X of the Securities Act of 1933 (and in any event after giving effect to the Adhesion Transactions), (iv) the then most recent forecasts of the Company of balance sheets, income statements and cash flow statements on a quarterly basis for the first year following the Delayed Draw Borrowing Date and on an annual basis for each year thereafter during the remaining term of the Credit Agreement and (v) a certificate, in form and substance satisfactory to the Administrative Agent, of the chief financial officer of the Company (A) certifying as to the solvency of the Company and its Subsidiaries on a consolidated basis (after giving effect to the Adhesion Transactions and the incurrence and repayment of Indebtedness related thereto) and (B) demonstrating that, as of the Delayed Draw Borrowing Date, and after giving pro forma effect to all elements of the Adhesion Transactions, the Consolidated Leverage Ratio is not greater than 3.75 to 1.00.

 

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(e) Receipt by the Administrative Agent of a certificate signed by a Responsible Officer of the Company certifying that there has been no circumstance, development, event, condition, effect or change since December 31, 2010 that has had or would be reasonably expected, either individually or in the aggregate (including after giving effect to the Adhesion Transactions), to have (i) a material adverse change in, or material adverse effect on, the operations, business, assets, properties, liabilities (actual or contingent) or financial condition of the Company and its Subsidiaries (which Subsidiaries shall include the New Subsidiaries after giving effect to the Adhesion Acquisition), (ii) a material impairment of the rights and remedies of the Administrative Agent or any Lender under any of the Loan Documents or of the ability of any of the Company or its Subsidiaries (which Subsidiaries shall include the New Subsidiaries after giving effect to the Adhesion Acquisition) to perform their obligations under any Loan Documents to which they are parties or will be parties and (iii) a material adverse effect upon the legality, validity, binding effect or enforceability against the Company or any of its Subsidiaries (which Subsidiaries shall include the New Subsidiaries after giving effect to the Adhesion Acquisition) of any Loan Document to which it is, or will be, a party.

(f) From the Third Amendment Effective Date prior to the Delayed Draw Borrowing Date, (i) there shall be no other issuances of debt securities or commercial bank or other credit facilities (other than Credit Extensions under this Agreement and capital lease and equipment financings entered into in the ordinary course of business and consistent with past practice) of the Company, Adhesion or any of their respective Subsidiaries announced, offered, placed or arranged without the Joint Lead Arrangers’ and Administrative Agent’s consent (such consent not to be unreasonably withheld or delayed) and (ii) neither the Company nor any Subsidiary shall have entered into any agreement to acquire any other entity, or consummated any acquisition (other than the Adhesion Acquisition).

(g) All fees required to be paid on or before the Delayed Draw Borrowing Date shall have been paid, including without limitation, all fees required to be paid pursuant to Section 2.09(b).

(h) Unless waived by the Administrative Agent, the Company shall have paid all fees, charges and disbursements of counsel to Merrill Lynch, Pierce, Fenner & Smith Incorporated and the Administrative Agent, including any special or local (including foreign) counsel (directly to such counsel if requested by the Administrative Agent), to the extent invoiced prior to or on the Delayed Draw Borrowing Date, plus such additional amounts of such fees, charges, disbursements as shall constitute such counsel’s reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing proceedings with respect to the Delayed Draw Borrowing Date (provided that such estimate shall not thereafter preclude a final settling of accounts between the Company and the Administrative Agent).

(i) At least five Business Days prior to the Delayed Draw Borrowing Date, the Administrative Agent and the Lenders shall have received all documentation and other information required by regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Act, that has been requested not less than five Business Days prior to the Delayed Draw Borrowing Date.

 

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ARTICLE V.

REPRESENTATIONS AND WARRANTIES

Each Borrower represents and warrants to the Agents and the Lenders that:

5.01 Existence, Qualification and Power.

Each Loan Party and each Subsidiary thereof (a) is duly organized or formed, validly existing and, as applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, (b) has all requisite power and authority and all requisite governmental licenses, authorizations, consents and approvals to (i) own or lease its assets and carry on its business and (ii) execute, deliver and perform its obligations under the Loan Documents to which it is a party, and (c) is duly qualified and is licensed and, as applicable, in good standing under the Laws of each jurisdiction where its ownership, lease or operation of properties or the conduct of its business requires such qualification or license; except in each case referred to in clause (b)(i) or (c), to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect.

5.02 Authorization; No Contravention.

The execution, delivery and performance by each Loan Party of each Loan Document to which such Person is party, have been duly authorized by all necessary corporate or other organizational action, and do not and will not (a) contravene the terms of any of such Person’s Organization Documents; (b) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which such Person is a party or affecting such Person or the properties of such Person or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which such Person or its property is subject; or (c) violate any Law.

5.03 Governmental Authorization; Other Consents.

No approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, any Loan Party of this Agreement or any other Loan Document.

5.04 Binding Effect.

This Agreement has been, and each other Loan Document, when delivered hereunder, will have been, duly executed and delivered by each Loan Party that is party thereto. This Agreement constitutes, and each other Loan Document when so delivered will constitute, a legal, valid and binding obligation of such Loan Party, enforceable against each Loan Party that is party thereto in accordance with its terms, subject to bankruptcy, insolvency and similar laws affecting the enforceability of creditors’ rights generally and general principles of equity and subject to other similar customary limitations affecting enforceability of the Loan Documents under applicable Law in the relevant foreign jurisdictions.

5.05 Financial Statements; No Material Adverse Effect.

 

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(a) The Audited Financial Statements (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; (ii) fairly present the financial condition of the Company and each Person that was a Subsidiary of the Company on the date of the Audited Financial Statements as of the date thereof and their results of operations for the period covered thereby in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein; and (iii) show all material indebtedness and other liabilities, direct or contingent, of the Company and such Subsidiaries as of the date thereof, including liabilities for taxes, material commitments and Indebtedness.

(b) The unaudited consolidated and consolidating balance sheets of the Company and each Person that was a Subsidiary of the Company on the date of such balance sheets dated September 30, 2007, and the related consolidated and consolidating statements of income or operations, shareholders’ equity and cash flows for the fiscal quarter ended on that date (i) were prepared in accordance with GAAP consistently applied throughout the period covered thereby, except as otherwise expressly noted therein, and (ii) fairly present the financial condition of the Company and such Subsidiaries as of the date thereof and their results of operations for the period covered thereby, subject, in the case of clauses (i) and (ii), to the absence of footnotes and to normal year-end audit adjustments.

(c) Since the date of the Audited Financial Statements, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have a Material Adverse Effect.

(d) The consolidated and consolidating pro forma balance sheet of the Company and its Subsidiaries as at September 30, 2007 and the related consolidated and consolidating pro forma statements of income and cash flows of the Company and its Subsidiaries for the six months then ended, certified by the chief financial officer or treasurer of the Company, copies of which have been furnished to each Lender, fairly present the consolidated and consolidating pro forma financial condition of the Company and its Subsidiaries as at such date and the consolidated and consolidating pro forma results of operations of the Company and its Subsidiaries for the period ended on such date, all in accordance with GAAP.

(e) The consolidated and consolidating forecasted balance sheet and statements of income and cash flows of the Company and its Subsidiaries delivered pursuant to Section 6.01(c) were prepared in good faith on the basis of the assumptions stated therein, which assumptions were fair in light of the conditions existing at the time of delivery of such forecasts, and represented, at the time of delivery, the Company’s best estimate of its future financial condition and performance.

5.06 Litigation.

There are no actions, suits, proceedings, claims or disputes pending or, to the knowledge of the Company after due and diligent investigation, threatened or contemplated, at law, in equity, in arbitration or before any Governmental Authority, by or against the Company or any of its Subsidiaries or against any of their properties or revenues that (a) purport to affect or pertain to this Agreement or any other Loan Document, or any of the transactions contemplated hereby, or (b) except as specifically disclosed in Schedule 5.06, either individually or in the aggregate, if determined adversely, could reasonably be expected to have a Material Adverse Effect.

 

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5.07 No Default.

Neither any Loan Party nor any Subsidiary thereof is in default under or with respect to any Contractual Obligation that could, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by this Agreement or any other Loan Document.

5.08 Ownership of Property; Liens.

Each of the Company and each Subsidiary has good record and marketable title in fee simple to, or valid leasehold interests in, all real property necessary or used in the ordinary conduct of its business, except for such defects in title as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The property of the Company and its Subsidiaries is subject to no Liens, other than Liens permitted by Section 7.01.

5.09 Environmental Compliance.

The Company and its Subsidiaries conduct in the ordinary course of business a review of the effect of existing Environmental Laws and claims alleging potential liability or responsibility for violation of any Environmental Law on their respective businesses, operations and properties, and as a result thereof the Company has reasonably concluded that, except as specifically disclosed in Schedule 5.09, such Environmental Laws and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

5.10 Insurance.

The properties of the Company and its Subsidiaries are insured with financially sound and reputable insurance companies reasonably acceptable to the Administrative Agent not Affiliates of the Company, in such amounts, with such deductibles and covering such risks as are customarily carried by companies engaged in similar businesses and owning similar properties in localities where the Company or the applicable Subsidiary operates.

5.11 Taxes. Except as set forth on Schedule 5.11,

the Company and its Subsidiaries have filed all Federal, state and other material Tax returns and reports required to be filed, and have paid all Federal, state and other material Taxes, assessments, fees and other governmental charges levied or imposed upon them or their properties, income or assets otherwise due and payable, except those which are being contested in good faith by appropriate proceedings diligently conducted and for which adequate reserves have been provided in accordance with GAAP. There is no proposed Tax assessment against the Company or any Subsidiary that would, if made, have a Material Adverse Effect. Except for tax sharing agreements that may be entered into among the Company and its Subsidiaries in the ordinary course of business, neither any Loan Party nor any Subsidiary thereof is party to any tax sharing agreement.

 

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5.12 ERISA Compliance.

(a) Each Plan is in compliance in all material respects with the applicable provisions of ERISA, the Code and other Federal or state Laws. Each Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS or an application for such a letter is currently being processed by the IRS with respect thereto and, to the best knowledge of the Company, nothing has occurred which would prevent, or cause the loss of, such qualification. The Company and each ERISA Affiliate have made all required contributions to each Plan subject to Section 412 of the Code, and no application for a funding waiver or an extension of any amortization period pursuant to Section 412 of the Code has been made with respect to any Plan.

(b) There are no pending or, to the best knowledge of the Company, threatened claims, actions or lawsuits, or action by any Governmental Authority, with respect to any Plan that could reasonably be expected to have a Material Adverse Effect. There has been no prohibited transaction or violation of the fiduciary responsibility rules with respect to any Plan that has resulted or could reasonably be expected to result in a Material Adverse Effect.

(c) (i) No ERISA Event has occurred or is reasonably expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the Company nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability under Title IV of ERISA with respect to any Pension Plan (other than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither the Company nor any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which, with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the Company nor any ERISA Affiliate has engaged in a transaction that could be subject to Section 4069 or 4212(c) of ERISA.

5.13 Subsidiaries; Equity Interests.

As of the Closing Date, the Company has no Subsidiaries other than those specifically disclosed in Part (a) of Schedule 5.13, and all of the outstanding Equity Interests in such Subsidiaries have been validly issued, are fully paid and nonassessable and are owned by a Loan Party in the amounts specified on Part (a) of Schedule 5.13 free and clear of all Liens. As of the Closing Date, the Company has no equity investments in any other corporation or entity other than those specifically disclosed in Part (b) of Schedule 5.13. All of the outstanding Equity Interests in the Company have been validly issued, are fully paid and nonassessable.

5.14 Margin Regulations; Investment Company Act.

(a) No Borrower is engaged or will engage, principally or as one of its important activities, in the business of purchasing or carrying margin stock (within the meaning of Regulation U issued by the FRB), or extending credit for the purpose of purchasing or carrying margin stock. Following the application of the proceeds of each Borrowing or drawing under each Letter of Credit, not more than 25% of the value of the assets (either of the applicable Borrower only or of the Company and its Subsidiaries on a consolidated basis) subject to the provisions of Section 7.01 or Section 7.05 or subject to any restriction contained in any agreement or instrument between any Borrower and any Lender or any

 

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Affiliate of any Lender relating to Indebtedness and within the scope of Section 8.01(e) will be margin stock.

(b) None of the Company, any Person Controlling the Company, or any Subsidiary is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

5.15 Disclosure.

The Company has disclosed to the Agents and the Lenders all agreements, instruments and corporate or other restrictions to which it or any of its Subsidiaries is subject, and all other matters known to it, that, individually or in the aggregate, could reasonably be expected to result in a Material Adverse Effect. No report, financial statement, certificate or other information furnished (whether in writing or orally) by or on behalf of any Loan Party to either Agent or any Lender in connection with the transactions contemplated hereby and the negotiation of this Agreement or delivered hereunder or under any other Loan Document (in each case, as modified or supplemented by other information so furnished) contains any material misstatement of fact or omits to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that, with respect to projected financial information, the Company represents only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time.

5.16 Compliance with Laws.

Each Loan Party and each Subsidiary thereof is in compliance in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its properties, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted or (b) the failure to comply therewith, either individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.

5.17 Taxpayer Identification Number; Other Identifying Information.

The true and correct U.S. taxpayer identification number of the Company is set forth on Schedule 5.17. The true and correct unique identification number of each Designated Borrower that is a Foreign Subsidiary and a party hereto on the Closing Date that has been issued by its jurisdiction of organization and the name of such jurisdiction are set forth on Schedule 5.17.

5.18 Intellectual Property; Licenses, Etc.

The Company and its Subsidiaries own, or possess the right to use, all of the trademarks, service marks, trade names, copyrights, patents, patent rights, franchises, licenses and other intellectual property rights (collectively, “IP Rights”) that are reasonably necessary for the operation of their respective businesses, without conflict with the rights of any other Person. To the best knowledge of the Company, no slogan or other advertising device, product, process, method, substance, part or other material now employed, or now contemplated to be employed, by the Company or any Subsidiary infringes upon any rights held by any other Person. Except as specifically disclosed in Schedule 5.18, no claim or litigation regarding any of the foregoing is pending or, to the best knowledge of the Company, threatened, which, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

 

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5.19 Representations as to Foreign Obligors.

Each of the Company and each Foreign Obligor represents and warrants to the Agents and the Lenders that:

(a) Such Foreign Obligor is subject to civil and commercial Laws with respect to its obligations under this Agreement and the other Loan Documents to which it is a party (collectively as to such Foreign Obligor, the “Applicable Foreign Obligor Documents”), and the execution, delivery and performance by such Foreign Obligor of the Applicable Foreign Obligor Documents constitute and will constitute private and commercial acts and not public or governmental acts. Neither such Foreign Obligor nor any of its property has any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) under the laws of the jurisdiction in which such Foreign Obligor is organized and existing in respect of its obligations under the Applicable Foreign Obligor Documents.

(b) The Applicable Foreign Obligor Documents are in proper legal form under the Laws of the jurisdiction in which such Foreign Obligor is organized and existing for the enforcement thereof against such Foreign Obligor under the Laws of such jurisdiction, and to ensure the legality, validity, enforceability, priority or admissibility in evidence of the Applicable Foreign Obligor Documents. It is not necessary to ensure the legality, validity, enforceability, priority or admissibility in evidence of the Applicable Foreign Obligor Documents that the Applicable Foreign Obligor Documents be filed, registered or recorded with, or executed or notarized before, any court or other authority in the jurisdiction in which such Foreign Obligor is organized and existing or that any registration charge or stamp or similar tax be paid on or in respect of the Applicable Foreign Obligor Documents or any other document, except for (i) any such filing, registration, recording, execution or notarization as has been made or will be made pursuant to Section 4.01(a)(xix) or is not required to be made until the Applicable Foreign Obligor Document or any other document is sought to be enforced and (ii) any charge or tax as has been timely paid or is subject to reservation in accordance with Law.

(c) There is no tax, levy, impost, duty, fee, assessment or other governmental charge, or any deduction or withholding, imposed by any Governmental Authority in or of the jurisdiction in which such Foreign Obligor is organized and existing either (i) on or by virtue of the execution or delivery of the Applicable Foreign Obligor Documents or (ii) on any payment to be made by such Foreign Obligor pursuant to the Applicable Foreign Obligor Documents, except as has been disclosed to the Administrative Agent or will be made pursuant to Section 4.01(a)(xix).

(d) The execution, delivery and performance of the Applicable Foreign Obligor Documents executed by such Foreign Obligor are, under applicable foreign exchange control regulations of the jurisdiction in which such Foreign Obligor is organized and existing, not subject to any notification or authorization except (i) such as have been made or obtained or (ii) such as cannot be made or obtained until a later date (provided that any notification or authorization described in clause (ii) shall be made or obtained as soon as is reasonably practicable).

5.20 Solvency.

On the Closing Date, and immediately prior to and after giving effect to the issuance of each Letter of Credit and each Credit Extension hereunder and the use of the proceeds thereof, with respect to

 

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the Company and each Subsidiary, individually, (a) the fair value of its assets is greater than the amount of its liabilities (including disputed, contingent and unliquidated liabilities) as such value is established and liabilities evaluated in accordance with GAAP, (b) the present fair saleable value of its assets is not less than the amount that will be required to pay the probable liability on its debts as they become absolute and matured, (c) it is able to realize upon its assets and pay its debts and other liabilities (including disputed, contingent and unliquidated liabilities) as they mature in the normal course of business, (d) it does not intend to, and does not believe that it will, incur debts or liabilities beyond its ability to pay as such debts and liabilities mature and (e) it is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which its property would constitute unreasonably small capital.

5.21 Related Agreements. (a)

The Company has heretofore furnished the Administrative Agent a true and correct copy of the Acquisition Agreement.

(b) The Company and each Subsidiary, and, to the Company’s knowledge, each other party to the Acquisition Documentation, has duly taken all necessary corporate, partnership or other organizational action to authorize the execution, delivery and performance of the Acquisition Documentation and the consummation of transactions contemplated thereby.

(c) (i) The Acquisition will comply, in all material respects, with all applicable Laws and (ii) all necessary material governmental, regulatory, creditor, shareholder, partner and other material consents, approvals and exemptions required to be obtained by Company or any of its Subsidiaries and, to the Company’s knowledge, each other party to the Acquisition Documentation in connection with the Acquisition will be, prior to consummation of the Acquisition, duly obtained and will be in full force and effect. As of the Closing Date, all applicable waiting periods with respect to the Acquisition will have expired without any action being taken by any competent Governmental Authority which restrains, prevents or imposes material adverse conditions upon the consummation of the Acquisition.

(d) The execution and delivery of the Acquisition Documentation did not, and the consummation of the Acquisition will not, violate, in any material respect, any applicable Laws binding on the Company or any Subsidiary or, to the Company’s knowledge, any other party to the Acquisition Documentation, or result in a breach of, or constitute a default under, any material agreement, indenture, instrument or other document, or any judgment, order or decree, to which any the Company or any Subsidiary is a party or by which the Company or any Subsidiary is bound or, to the Company’s knowledge, to which any other party to the Acquisition Documentation is a party or by which any such party is bound.

(e) No statement or representation made in the Acquisition Documentation by the Company or any Subsidiary or, to the Company’s knowledge, any other Person, contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not materially misleading.

 

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(f) No material changes were made to the Acquisition Documentation that have not been provided to the Administrative Agent, and, with respect to changes that, in the reasonable determination of the Administrative Agent, materially affect this Agreement and the transactions contemplated herein, that have not been consented to by the Administrative Agent.

5.22 Existing Australian Charges. (a) To the best of the Borrowers’ knowledge, all Indebtedness relating to the Existing Australian Charges has been paid in full and no amounts are owing or will become owing as of the Closing Date or at any time thereafter.

(b) No payments have been made with respect to any Indebtedness relating to the Existing Australian Charges in the twelve months preceding the Closing Date.

(c) There are no actions, suits, proceedings, claims or disputes pending or, to the best of the Borrowers’ knowledge, threatened, against the Australian Borrower or its Subsidiaries as of the Closing Date, with respect to the Existing Australian Charges.

ARTICLE VI.

AFFIRMATIVE COVENANTS

So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Company shall, and shall (except in the case of the covenants set forth in Sections 6.01, 6.02, and 6.03) cause each Subsidiary to:

6.01 Financial Statements.

Deliver to each Agent and each Lender, in form and detail satisfactory to the Agents and the Required Lenders:

(a) as soon as available, but in any event within 90 days after the end of each fiscal year of the Company (commencing with the fiscal year ended March 31, 2008), a consolidated and consolidating balance sheet of the Company and its Subsidiaries as at the end of such fiscal year, and the related consolidated and consolidating statements of income or operations, shareholders’ equity and cash flows for such fiscal year, setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail and prepared in accordance with GAAP, such consolidated statements to be audited and accompanied by a report and opinion of an independent certified public accountant of nationally recognized standing reasonably acceptable to the Required Lenders, which report and opinion shall be prepared in accordance with generally accepted auditing standards and shall not be subject to any “going concern” or like qualification or exception or any qualification or exception as to the scope of such audit, and such consolidating statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of the Company to the effect that such statements are fairly stated in all material respects when considered in relation to the consolidated financial statements of the Company and its Subsidiaries;

(b) as soon as available, but in any event within 45 days after the end of each of the first three fiscal quarters of each fiscal year of the Company (commencing with the fiscal quarter ended

 

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December 31, 2007), a consolidated and consolidating balance sheet of the Company and its Subsidiaries as at the end of such fiscal quarter, and the related consolidated and consolidating statements of income or operations, shareholders’ equity and cash flows for such fiscal quarter and for the portion of the Company’s fiscal year then ended, setting forth in each case in comparative form the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, all in reasonable detail, such consolidated statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of the Company as fairly presenting the financial condition, results of operations, shareholders’ equity and cash flows of the Company and its Subsidiaries in accordance with GAAP, subject only to normal year-end audit adjustments and the absence of footnotes and such consolidating statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of the Company to the effect that such statements are fairly stated in all material respects when considered in relation to the consolidated financial statements of the Company and its Subsidiaries; and

(c) as soon as available, but in any event not later than 90 days after the end of each fiscal year of the Company, forecasts prepared by management of the Company, in form satisfactory to the Administrative Agent and the Required Lenders, of consolidated balance sheets and statements of income or operations and cash flows of the Company and its Subsidiaries on a quarterly basis for the immediately following fiscal year (including the fiscal year in which the Maturity Date occurs).

As to any information contained in materials furnished pursuant to Section 6.02(d), the Company shall not be separately required to furnish such information under clause (a) or (b) above, but the foregoing shall not be in derogation of the obligation of the Company to furnish the information and materials described in clauses (a) and (b) above at the times specified therein.

6.02 Certificates; Other Information.

Deliver to each Agent and each Lender, in form and detail satisfactory to the Administrative Agent:

(a) reserved;

(b) concurrently with the delivery of the financial statements referred to in Sections 6.01(a) and (b) (commencing with the delivery of the financial statements for the fiscal year ending March 31, 2008), a duly completed Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of the Company;

(c) promptly after any request by either Agent or any Lender, copies of any detailed audit reports, management letters or recommendations submitted to the board of directors (or the audit committee of the board of directors) of the Company by independent accountants in connection with the accounts or books of the Company or any Subsidiary, or any audit of any of them;

(d) promptly after the same are available, copies of each annual report, proxy or financial statement or other report or communication sent to the stockholders of the Company, and copies of all annual, regular, periodic and special reports and registration statements which the Company may file or be required to file with the SEC under Section 13 or 15(d) of the Securities Exchange Act of 1934, and not otherwise required to be delivered to the Agents pursuant hereto;

 

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(e) promptly, and in any event within five Business Days after receipt thereof by any Loan Party or any Subsidiary thereof, copies of each notice or other correspondence received from the SEC (or comparable agency in any applicable non-U.S. jurisdiction) concerning any investigation or possible investigation or other inquiry by such agency regarding financial or other operational results of any Loan Party or any Subsidiary thereof; and

(f) promptly, such additional information regarding the business, financial or corporate affairs of the Company or any Subsidiary, or compliance with the terms of the Loan Documents, as either Agent or any Lender may from time to time reasonably request.

Documents required to be delivered pursuant to Section 6.01(a) or (b) or Section 6.02(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company posts such documents, or provides a link thereto on the Company’s website on the Internet at the website address listed on Schedule 10.02; or (ii) on which such documents are posted on the Company’s behalf on an Internet or intranet website, if any, to which each Lender and each Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: (i) the Company shall deliver paper copies of such documents to either Agent or any Lender that requests the Company to deliver such paper copies until a written request to cease delivering paper copies is given by such Agent or such Lender and (ii) the Company shall notify each Agent and each Lender (by telecopier or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Notwithstanding anything contained herein, in every instance the Company shall be required to provide paper copies of the Compliance Certificates required by Section 6.02(b) to the Administrative Agent. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Company with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

Each Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arranger will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of such Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “Platform”) and (b) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to any of the Borrowers or their respective Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. Each Borrower hereby agrees that so long as such Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities (w) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrowers shall be deemed to have authorized the Administrative Agent, the Arranger, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information with respect to the Borrowers or their respective securities for purposes of United States Federal and state securities laws (provided, however, that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section 10.07); (y) all

 

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Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (z) the Administrative Agent and the Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.” Notwithstanding the foregoing, no Borrower shall be under any obligation to mark any Borrower Materials “PUBLIC.”

6.03 Notices.

Promptly notify each Agent and each Lender:

(a) of the occurrence of any Default;

(b) of any matter that has resulted or could reasonably be expected to result in a Material Adverse Effect, including, to the extent applicable: (i) breach or non-performance of, or any default under, a Contractual Obligation of the Borrower or any Subsidiary; (ii) any dispute, litigation, investigation, proceeding or suspension between the Borrower or any Subsidiary and any Governmental Authority; or (iii) the commencement of, or any material development in, any litigation or proceeding affecting the Borrower or any Subsidiary, including pursuant to any applicable Environmental Laws;

(c) of the occurrence of any ERISA Event;

(d) of the occurrence of any Disposition other than a Disposition described in clause (a), (b), (d), (g) or (h), or, solely with respect to the Disposition of equipment, clause (c)(i) of Section 7.05 or a Disposition contemplated by the Acquisition Documentation;

(e) of the issuance of any capital stock or other Equity Interest of the Company or its Subsidiaries to any Person other than a Loan Party, other than as contemplated by the Acquisition Documentation;

(f) of the issuance of any Indebtedness of the Company or its Subsidiaries in excess of $5,000,000, other than Indebtedness pursuant to the Loan Documents;

(g) of the receipt of any insurance claim or condemnation award in excess of $5,000,000; and

(h) of any material change in accounting policies or financial reporting practices by the Borrower or any Subsidiary, including any determination by the Company referred to in Section 2.10(b).

Each notice pursuant to this Section 6.03 shall be accompanied by a statement of a Responsible Officer of the Company setting forth details of the occurrence referred to therein and stating what action the Company has taken and proposes to take with respect thereto. Each notice pursuant to Section 6.03(a) shall describe with particularity any and all provisions of this Agreement and any other Loan Document that have been breached.

6.04 Payment of Obligations.

Pay and discharge as the same shall become due and payable, all its obligations and liabilities, including (a) all Tax liabilities, assessments and governmental charges or levies upon it or its properties

 

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or assets, unless the same are being contested in good faith by appropriate proceedings diligently conducted and adequate reserves in accordance with GAAP are being maintained by the Company or such Subsidiary; (b) all lawful claims which, if unpaid, would by law become a Lien upon its property; and (c) all Indebtedness, as and when due and payable, but subject to any subordination provisions contained in any instrument or agreement evidencing such Indebtedness.

6.05 Preservation of Existence, Etc.

(a) Preserve, renew and maintain in full force and effect its legal existence and good standing under the Laws of the jurisdiction of its organization except in a transaction permitted by Section 7.04 or 7.05; (b) take all reasonable action to maintain all rights, privileges, permits, licenses and franchises necessary or desirable in the normal conduct of its business, except to the extent that failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) preserve or renew all of its registered patents, trademarks, trade names and service marks, the non-preservation of which could reasonably be expected to have a Material Adverse Effect.

6.06 Maintenance of Properties.

(a) Maintain, preserve and protect all of its material properties and equipment necessary in the operation of its business in good working order and condition, ordinary wear and tear excepted; (b) make all necessary repairs thereto and renewals and replacements thereof except where the failure to do so could not reasonably be expected to have a Material Adverse Effect; and (c) use the standard of care typical in the industry in the operation and maintenance of its facilities.

6.07 Maintenance of Insurance.

Maintain with financially sound and reputable insurance companies reasonably acceptable to the Administrative Agent not Affiliates of the Company, insurance with respect to its properties and business against loss or damage of the kinds customarily insured against by Persons engaged in the same or similar business, of such types and in such amounts as are customarily carried under similar circumstances by such other Persons and providing for not less than 30 days’ prior notice to the Administrative Agent of termination, lapse or cancellation of such insurance.

6.08 Compliance with Laws.

Comply in all material respects with the requirements of all Laws and all orders, writs, injunctions and decrees applicable to it or to its business or property, except in such instances in which (a) such requirement of Law or order, writ, injunction or decree is being contested in good faith by appropriate proceedings diligently conducted; or (b) the failure to comply therewith could not reasonably be expected to have a Material Adverse Effect.

6.09 Books and Records.

(a) Maintain proper books of record and account, in which full, true and correct entries in conformity with GAAP consistently applied shall be made of all financial transactions and matters involving the assets and business of the Company or such Subsidiary, as the case may be; and (b) maintain such books of record and account in material conformity with all applicable requirements of any

 

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Governmental Authority having regulatory jurisdiction over the Company or such Subsidiary, as the case may be.

6.10 Inspection Rights.

Permit representatives and independent contractors of either Agent to visit and inspect any of its properties, to examine its corporate, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its directors, officers, and independent public accountants, all at the expense of the Company and at such reasonable times during normal business hours and as often as may be reasonably desired, upon reasonable advance notice to the Company; provided, however, that so long as no Event of Default has occurred and is continuing, the Company shall not be required to reimburse the applicable Agent for inspections or audits made more frequently than twice in any fiscal year; provided further, however, that when an Event of Default exists the Agents (or any of their representatives or independent contractors) may do any of the foregoing at the expense of the Company at any time during normal business hours and without advance notice.

6.11 Use of Proceeds.

(a) Prior to the Delayed Draw Borrowing Date, use the proceeds of (i) the U.S. Sub-facility to (A) finance the acquisition of Collotype International Holdings Pty Limited and its Subsidiaries and the other transactions contemplated by the Acquisition Documentation, (B) refinance existing debt of the Company and its Subsidiaries (and related fees and expenses, including professional fees), (C) for working capital, capital expenditures, and other lawful corporate purposes, and (D) to fund Permitted Acquisitions and other transactions incident thereto and otherwise permitted hereunder and (ii) the Australian Sub-facility to (A) refinance existing debt of Collotype International Holdings Pty Limited and its Subsidiaries and (B) for working capital, capital expenditures, and other lawful corporate purposes.

(b) On or after the Delayed Draw Borrowing Date, use the proceeds of:

(i) the Term A Loan (A) to finance a portion of the consideration for the Adhesion Acquisition (including repayment of the Indebtedness of Adhesion and its Subsidiaries), (B) to pay fees, costs and expenses in connection with the Adhesion Transactions and (C) to the extent there are any excess proceeds of the Term A Loan after the consideration for the Adhesion Acquisition and fees, costs and expenses in connection therewith described in clauses (A) and (B) above have been paid, to repay outstanding Revolving Loans;

(ii) Credit Extensions under the U.S Revolving Commitment (A) to finance a portion of the consideration for the Adhesion Acquisition (including repayment of the Indebtedness of Adhesion and its Subsidiaries) (B) to finance all or a portion of the Chilean JV Acquisition Payment, (C) to pay fees, costs and expenses in connection with the Adhesion Transactions, (D) for working capital, capital expenditures, and other lawful corporate purposes, and (E) to fund Permitted Acquisitions and other transactions incident thereto and otherwise permitted hereunder; and

(iii) the Australian Sub-facility for working capital, capital expenditures, and other lawful corporate purposes.

 

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6.12 Approvals and Authorizations.

Maintain all authorizations, consents, approvals and licenses from, exemptions of, and filings and registrations with, each Governmental Authority of the jurisdiction in which each Foreign Obligor is organized and existing, and all approvals and consents of each other Person in such jurisdiction, in each case that are required in connection with the Loan Documents, and in each case except where the failure to do so could not reasonably be expected to have a Material Adverse Effect.

6.13 Additional Subsidiary Guarantors; Real Property.

(a) Additional Subsidiary Guarantors.

(i) Notify the Administrative Agent at the time that any Person becomes a Domestic Subsidiary and promptly thereafter (and in any event within 30 days or such later time as may be determined by the Administrative Agent in its sole discretion), cause such Person to (A) become a Subsidiary Guarantor by executing and delivering to the Administrative Agent a counterpart of, or joinder to, the Guaranty and Collateral Agreement or such other document as the Administrative Agent shall deem appropriate for such purpose, (B) grant a deed of charge or lien (or such other document as the Administrative Agent shall deem appropriate for such purpose) over all or substantially all of its assets in favor of the Administrative Agent, and (C) deliver to the Administrative Agent documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a) and, if requested by the Administrative Agent, opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clause (A)), all in form, content and scope reasonably satisfactory to the Administrative Agent.

(ii) Notify each Agent on the earliest of (x) the Delayed Draw Expiration Date, of any Person that is a Foreign Subsidiary as of such date that was formed or incorporated in the same jurisdiction as any Borrower, (y) the time that any Person becomes a Foreign Subsidiary (whether by the creation or acquisition of such Subsidiary or otherwise) and (z) the time that any Person becomes a Borrower pursuant to Section 2.14, of any Person that is a Foreign Subsidiary as of such date that is formed or incorporated in the same jurisdiction as such Borrower, and in the case of each such Person that is a Foreign Subsidiary that is organized under the laws of a jurisdiction in which any Borrower is also organized, promptly thereafter (and in any event within 30 days or such later time as may be determined by the Agents in their collective sole discretion) and subject to clause (iii) below, cause such Person to (A) become a Subsidiary Guarantor by executing and delivering to the Agents a counterpart of, or joinder to, the Australian Deed of Guarantee and Indemnity or such other document as either Agent shall deem appropriate for such purpose (including, without limitation, an accession deed to the Australian Deed of Guarantee and Indemnity), (B) grant a deed of charge or lien (or such other document as the Agents shall deem appropriate for such purpose) over all or substantially all of its assets in favor of each applicable Agent and (C) deliver to the Agents documents of the types referred to in clauses (iii) and (iv) of Section 4.01(a) and, if requested by either Agent, opinions of counsel to such Person (which shall cover, among other things, the legality, validity, binding effect and enforceability of the documentation referred to in clause (A)), all in form, content and scope reasonably satisfactory to the Agents.

 

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(iii) Nothing in this Section 6.13 shall require that (A) a Foreign Subsidiary guarantee or grant a deed of charge or lien (or such other document as the applicable Agent shall deem appropriate for such purpose) over all or substantially all or its assets to guarantee or secure any obligations of any Borrower that is not organized in the same jurisdiction as such Foreign Subsidiary or (B) that the Loan Parties be required to take any action under the laws of the jurisdiction of incorporation or formation of any Immaterial First-Tier Foreign Subsidiary to perfect security interests in any Collateral consisting of the capital stock issued by such Immaterial First-Tier Foreign Subsidiary.

(b) Real Property. Notify the Administrative Agent, (x) on or prior to the Third Amendment Effective Date of any Material Real Property owned by a Loan Party as of such date and (y) within ten (10) days after the acquisition of any Material Real Property by any Loan Party (or if any existing real property owned by a Loan Party becomes Material Real Property), in each case that is not subject to the existing U.S. Security Documents, and upon the request of the Administrative Agent, promptly (but in any event, within sixty (60) days of the date of such request (or such later time as may be determined by the Administrative Agent in its sole discretion)), deliver such mortgages, deeds of trust, title insurance policies, flood zone determinations, flood insurance certifications, environmental reports, surveys and other documents reasonably requested by the Administrative Agent in connection with granting and perfecting a first priority Lien, subject only to Liens permitted under Section 7.01, on such real property in favor of the Administrative Agent, for the ratable benefit of the U.S. Sub-facility Lenders, all in form and substance reasonably acceptable to the Administrative Agent. Notwithstanding the foregoing, the Excluded Kansas City Property shall be excluded from the requirements of this Section 6.13(b); provided that in the event the applicable Loan Party is unable to Dispose of such property on or before the first anniversary of the date on which the Adhesion Acquisition is consummated, the Company shall, or shall cause the applicable Loan Party to, comply with each of the foregoing requirements of this Section 6.13(b) with respect to the Excluded Kansas City Property (to the extent such Excluded Kansas City Property is Material Real Property) within sixty (60) days of the first anniversary of the Delayed Draw Borrowing Date (or such later time as may be determined by the Administrative Agent in its sole discretion).

(c) Immaterial Subsidiaries. Notify the Administrative Agent at the time that any Subsidiary that was previously an Immaterial First-Tier Foreign Subsidiary ceases to be an Immaterial First-Tier Foreign Subsidiary, and, upon the request of the Administrative Agent promptly thereafter (and in any event within 30 days or such later time as may be determined by the Administrative Agent in its sole discretion), cause the Loan Parties and such Subsidiary to take any and all actions under the laws of the jurisdiction of incorporation or formation of such Subsidiary to perfect security interests in any Collateral consisting of the capital stock issued by such Subsidiary.

6.14 Environmental Matters.

If any release or threatened release or other disposal of Hazardous Materials shall occur or shall have occurred on any real property or any other assets of any Loan Party, the Company shall, or shall cause the applicable Loan Party to, cause the prompt containment and removal of such Hazardous Materials and the remediation of such real property or other assets as necessary to comply, in all material respects, with all Environmental Laws and to preserve the value of such real property or other assets. Without limiting the generality of the foregoing, the Company shall, and shall cause each other Loan Party to, comply, in all material respects, with any Federal or state judicial or administrative order

 

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requiring the performance at any real property of any Loan Party of activities in response to the release or threatened release of Hazardous Materials. To the extent that the transportation of Hazardous Materials is permitted by this Agreement, the Company shall, and shall cause its Subsidiaries to, dispose of such Hazardous Materials, or of any other wastes, only at licensed disposal facilities operating in compliance, to the Company’s knowledge, with Environmental Laws.

6.15 Designation of Australian Borrower; Satisfaction of Conditions Precedent.

Immediately upon the completion of the Acquisition, undertake to (i) designate Collotype International Holdings Pty Limited as the Australian Borrower hereunder and (ii) satisfy the conditions precedent to the initial Credit Extension of the Australian Sub-facility set forth in Section 4.01(b).

6.16 Further Assurances.

Take, and cause each Subsidiary to take, such actions as are necessary or as either Agent or the Required Lenders may reasonably request from time to time to ensure that the Obligations of each applicable Loan Party under the Loan Documents are secured by substantially all of the personal assets of the Company and each applicable Loan Party (including all capital stock that are owned by such Loan Party of each Domestic Subsidiary and 66% of all capital stock that are owned by such Loan Party of any Foreign Subsidiary that is a direct wholly-owned Subsidiary of either the Company or a Domestic Subsidiary of the Company, but excluding the capital stock of any other Foreign Subsidiary) and guaranteed by each Loan Party (including, upon the acquisition or creation thereof, any Subsidiary acquired or created after the Closing Date), in each case as the Agents may determine, including (a) the execution and delivery of guaranties, security agreements, pledge agreements, financing statements and other documents, and the filing or recording of any of the foregoing, (b) the delivery of certificated securities and other Collateral with respect to which perfection is obtained by possession, and (c) authorizing and causing the delivery of opinions of legal counsel, including, if requested by either Agent or the Required Lenders, an opinion of South African counsel; provided that in no event shall the Loan Parties be required to take any action under the laws of the jurisdiction of incorporation or formation of any Immaterial First-Tier Foreign Subsidiary to perfect security interests in any Collateral consisting of the capital stock issued by such Immaterial First-Tier Foreign Subsidiary.

ARTICLE VII.

NEGATIVE COVENANTS

So long as any Lender shall have any Commitment hereunder, any Loan or other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of Credit shall remain outstanding, the Company shall not, nor shall it permit any other Loan Party or any Restricted Foreign Subsidiary to, directly or indirectly:

7.01 Liens.

Create, incur, assume or suffer to exist any Lien upon any of its property, assets or revenues, whether now owned or hereafter acquired, other than the following:

(a) Liens pursuant to any Loan Document;

 

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(b) Liens existing on the date hereof and listed on Schedule 7.01 and any renewals or extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except as contemplated by Section 7.03(b), (iii) the direct or any contingent obligor with respect thereto is not changed, and (iv) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.03(b);

(c) Liens for Taxes not yet due or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;

(d) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than 30 days or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person;

(e) pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;

(f) deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;

(g) easements, rights-of-way, restrictions and other similar encumbrances affecting real property which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person;

(h) Liens securing judgments for the payment of money not constituting an Event of Default under Section 8.01(h);

(i) Liens securing Indebtedness permitted under Section 7.03(e); provided that (i) such Liens do not at any time encumber any property other than the property financed by such Indebtedness and (ii) the Indebtedness secured thereby does not exceed the cost or fair market value, whichever is lower, of the property being acquired on the date of acquisition;

(j) attachments, appeal bonds, judgments and other similar Liens, for sums not exceeding $10,000,000 arising in connection with court proceedings, provided the execution or other enforcement of such Liens is effectively stayed and the claims secured thereby are being actively contested in good faith and by appropriate proceedings;

(k) precautionary financing statements filed by a lessor against one or more of the Company or any other Loan Party in connection with a true operating lease between such Company or such Subsidiary and such lessor;

 

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(l) normal and customary Liens in favor of the custodian of any securities custody account in which cash, securities and other property of the Company or any other Loan Party may be deposited from time to time;

(m) subject to the limitation set forth in Section 7.03(i), Liens securing only Indebtedness permitted pursuant to Section 7.03(i) and arising in connection with the Acquisition, the Adhesion Acquisition and Permitted Acquisitions;

(n) Liens arising with respect to Swap Contracts permitted pursuant to Section 7.03(d);

(o) (i) Liens of a collecting bank arising in the ordinary course of business under Section 4-210 of the Uniform Commercial Code in effect in the relevant jurisdiction and (ii) Liens of any depositary bank in connection with statutory, common law and contractual rights of set-off and recoupment with respect to any deposit account of any Borrower or any Subsidiary thereof; and

(p) so long as no amounts are secured thereby, the Existing Australian Charges.

7.02 Investments.

Make any Investments, except:

(a) Investments held by the Company or such other Loan Party in the form of cash equivalents or short-term marketable securities;

(b) advances to officers, directors and employees of the Company and Subsidiaries in an aggregate amount not to exceed $500,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes;

(c) (i) Investments of the Company in any other Loan Party that is a wholly-owned Subsidiary and Investments of any other Loan Party that is a wholly-owned Subsidiary in the Company or in another other Loan Party that is a wholly-owned Subsidiary; and (ii) Investments of the Company in any wholly-owned Subsidiary that is not a Loan Party and Investments of any other Loan Party or any Restricted Foreign Subsidiary in any wholly-owned Subsidiary that is not a Loan Party, in each case as described in this clause (ii), made for purposes of funding Permitted Acquisitions and the Adhesion Acquisition;

(d) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;

(e) Guarantees permitted by Section 7.03;

(f) contributions to or any payments of benefits under any Pension Plan or other “employee benefit plan” as defined in Section 3(2) of ERISA;

 

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(g) bank deposits in the ordinary course of business, provided that the aggregate amount of all such deposits (excluding amounts in payroll accounts or for accounts payable, in each case to the extent that checks have been issued to third parties) which are maintained with any bank other than a Lender shall not at any time exceed $1,000,000 with respect to any Domestic Subsidiary or the Australian Borrower and its Subsidiaries (incorporated or formed in Australia) and shall not at any time exceed $10,000,000 with respect to any other Foreign Subsidiary;

(h) Investments in securities of Account Debtors received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such account debtors;

(i) Investments in the Acquisition and Permitted Acquisitions;

(j) Investments contemplated by the Acquisition Documentation;

(k) Investments constituting Liens permitted by Section 7.01 or Indebtedness permitted by Section 7.03;

(l) subject to the satisfaction or waiver of the conditions set forth in Section 4.03, the Adhesion Acquisition as contemplated by the Adhesion Acquisition Documents;

(m) other Investments not exceeding $15,000,000 in the aggregate in any fiscal year of the Company; and

(n) such other Investments as the Administrative Agent may approve from time to time in advance and in writing.

7.03 Indebtedness.

Create, incur, assume or suffer to exist any Indebtedness, except:

(a) Indebtedness under the Loan Documents;

(b) Indebtedness outstanding on the date hereof and listed on Schedule 7.03 and any refinancings, refundings, renewals or extensions thereof; provided that (i) the amount of such Indebtedness is not increased at the time of such refinancing, refunding, renewal or extension except by an amount equal to a reasonable premium or other reasonable amount paid, and fees and expenses reasonably incurred, in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder and (ii) with respect to any Subordinated Debt, the terms relating to principal amount, amortization, maturity, collateral (if any) and subordination (if any), and other material terms taken as a whole, of any such refinancing, refunding, renewing or extending Indebtedness, and of any agreement entered into and of any instrument issued in connection therewith, are no less favorable in any material respect to the Loan Parties or the Lenders than the terms of any agreement or instrument governing the Indebtedness being refinanced, refunded, renewed or extended and the interest rate applicable to any such refinancing, refunding, renewing or extending Indebtedness does not exceed the then applicable market interest rate;

 

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(c) Guarantees of the Company or any Subsidiary Guarantor in respect of Indebtedness otherwise permitted hereunder of the Company or any other Subsidiary Guarantor;

(d) obligations (contingent or otherwise) of the Company or any other Loan Party existing or arising under any Swap Contract approved by the Administrative Agent and incurred in favor of a Lender or an Affiliate thereof, provided that (i) such obligations are (or were) entered into by such Person in the ordinary course of business for the purpose of directly mitigating risks associated with liabilities, commitments, investments, assets, or property held or reasonably anticipated by such Person, or changes in the value of securities issued by such Person, and not for purposes of speculation or taking a “market view;” and (ii) such Swap Contract does not contain any provision exonerating the non-defaulting party from its obligation to make payments on outstanding transactions to the defaulting party;

(e) Indebtedness in respect of capital leases, Synthetic Lease Obligations and purchase money obligations for fixed or capital assets within the limitations set forth in Section 7.01(i); provided, however, that the aggregate amount of all such Indebtedness at any one time outstanding shall not exceed (i) prior to the Delayed Draw Borrowing Date, $25,000,000 and (ii) on and after the Delayed Draw Borrowing Date, $35,000,000;

(f) Subordinated Debt;

(g) Indebtedness of (i) the Company to any other Loan Party that is a wholly-owned Subsidiary, (ii) any other Loan Party that is a wholly-owned Subsidiary to the Company or to any other Loan Party that is a wholly-owned Subsidiary, and (iii) any wholly-owned Subsidiary that is not a Loan Party to the Company or any other wholly-owned Subsidiary to the extent incurred to fund Permitted Acquisitions;

(h) up to $500,000 of unsecured Swap Contracts, which do not require the approval of the Administrative Agent, in which the counterparty is not a Lender or an Affiliate thereof;

(i) up to $30,000,000 (in the aggregate outstanding at any time) of Acquired Indebtedness acquired or assumed in connection with the Adhesion Acquisition as set forth on Schedule 7.03(i), the Acquisition and all Permitted Acquisitions; provided, however, that, notwithstanding the foregoing, the aggregate amount of Indebtedness outstanding at any one time under clauses (i) and (j) of this Section 7.03 may not exceed $30,000,000; provided further, however, that the Acquired Indebtedness of Guidotti shall not exceed €2,500,000; and

(j) other unsecured Indebtedness, in addition to the Indebtedness listed above, in an aggregate principal amount not to exceed $30,000,000 at any time outstanding; provided, however, that, notwithstanding the foregoing, the aggregate amount of Indebtedness outstanding at any one time under clauses (i) and (j) of this Section 7.03 may not exceed $30,000,000 provided further, however, that the aggregate other unsecured Indebtedness, or Indebtedness secured by a U.S. Letter of Credit, of any Restricted Foreign Subsidiary pursuant to this Section 7.03(j) shall not exceed $10,000,000.

7.04 Fundamental Changes.

Merge, dissolve, liquidate, consolidate with or into another Person, acquire, or Dispose of (whether in one transaction or in a series of transactions) all or substantially all of the Equity Interests or

 

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assets (whether now owned or hereafter acquired), of, to or in favor of, any Person, except that, so long as no Default exists or would result therefrom:

(a) (i) any Loan Party may merge with (A) the Company, provided that the Company shall be the continuing or surviving Person, or (B) any one or more other Loan Parties, provided that when any other Loan Party that is a wholly-owned Subsidiary is merging with another Subsidiary, the Loan Party that is a wholly-owned Subsidiary shall be the continuing or surviving Person; and (ii) any wholly-owned Subsidiary that is not a Loan Party may merge with the Company, any Loan Party, or any other wholly-owned Subsidiary, provided that when such wholly-owned Subsidiary is merging with the Company or a Loan Party, the Company or such Loan Party shall be the continuing or surviving Person, and provided further that when such wholly-owned Subsidiary is merging with another wholly-owned Subsidiary that is not a Loan Party but whose Equity Interests are pledged to an Agent for the benefit of the Lenders, the wholly-owned Subsidiary whose Equity Interests are so pledged shall be the continuing or surviving Person or, subject to the limitations set forth in Section 10.20, the Equity Interests of the continuing or surviving Person shall be pledged to such Agent pursuant to a pledge agreement on terms satisfactory to such Agent;

(b) any Loan Party may Dispose of all or substantially all of its assets (upon voluntary liquidation or otherwise) to the Company or to another Loan Party; provided that if the transferor in such a transaction is a Loan Party that is a wholly-owned Subsidiary, then the transferee must either be the Company or another Loan Party that is a wholly-owned Subsidiary; and

(c) the Company, any wholly owned Domestic Subsidiary, or any wholly owned Restricted Foreign Subsidiary may acquire any entity (each a “Permitted Acquisition”) where:

(i) the business or division acquired are for use, or the Person acquired is engaged, in the same as, or related to, the businesses engaged in by the Loan Parties on the Closing Date;

(ii) immediately before and after giving effect to such acquisition,

(A) if the Delayed Draw Borrowing Date has not occurred prior to such acquisition, the amount by which the Aggregate U.S. Revolving Loan Commitments exceeds the aggregate Outstanding Amount of all U.S. Revolving Loans is greater than or equal to $10,000,000; or

(B) if the Delayed Draw Borrowing Date has occurred prior to such acquisition,

(1) the amount by which the Aggregate U.S. Revolving Loan Commitments exceeds the aggregate Outstanding Amount of all U.S. Revolving Loans is greater than or equal to $15,000,000; and

(2) the amount by which the sum of the Aggregate U.S. Revolving Loan Commitments plus the Aggregate Australian Revolving Commitments exceeds the aggregate Outstanding Amount of all U.S. Revolving Loans and all Australian Revolving Loans is greater than or equal to $25,000,000;

(iii) immediately before and after giving effect to such acquisition, no Default or Event of Default shall exist;

 

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(iv) [Reserved];

(v) immediately after giving effect to such acquisition, the Company is in pro forma compliance with all the financial ratios and restrictions set forth in Section 7.11; provided that for purposes of this clause, if the pro forma Consolidated Leverage Ratio (calculated after giving effect to such proposed acquisition and any Indebtedness incurred in connection therewith) is equal to or greater than 3.75 to 1.00 then the applicable financial ratio and restriction under Section 7.11(c) to be satisfied for purposes of this clause shall be deemed to be 0.25 to 1.00 lower than the actual ratio required under Section 7.11(c);

(vi) in the case of the acquisition of any Person, the board of directors or similar governing body of such Person has approved such acquisition;

(vii) reasonably prior to such acquisition, the Administrative Agent shall have received complete executed or conformed copies of each material document, instrument and agreement to be executed in connection with such acquisition together with all lien search reports and lien release letters and other documents as the Administrative Agent may require to evidence the termination of Liens (other than Liens otherwise permitted pursuant to Section 7.01) on the assets or business to be acquired;

(viii) not less than ten Business Days prior to such acquisition, the Administrative Agent shall have received an acquisition summary with respect to the Person and/or business or division to be acquired, such summary to include a reasonably detailed description thereof (including financial information) and operating results (including financial statements for the most recent 12 month period for which they are available and as otherwise available), the terms and conditions, including economic terms, of the proposed acquisition, and the Company’s calculation of pro forma Consolidated EBITDA relating thereto;

(ix) the Administrative Agent and Required Lenders shall have approved (which approval will not be unreasonably withheld) the Company’s computation of pro forma Consolidated EBITDA;

(x) subject to the limitations set forth in Section 10.20, consents have been obtained in favor of the Administrative Agent and the Lenders to the collateral assignment of rights and indemnities under the related acquisition documents and opinions of counsel for the Company and its Subsidiaries and (if delivered to the Company and its Subsidiaries) the selling party in favor of the applicable Agent and the Lenders have been delivered;

(xi) the provisions of Section 6.15 have been satisfied;

(xii) in the case of an acquisition by the Company or a wholly owned Domestic Subsidiary, subject to the limitations set forth in Section 10.20, simultaneously with the closing of such acquisition, the target company (if such acquisition is structured as a purchase of equity) or the Company or such Domestic Subsidiary (if such acquisition is structured as a purchase of assets or a merger and the Company or such Domestic Subsidiary is the surviving entity) executes and delivers to the applicable Agent (a) such documents necessary to grant to such Agent for the benefit of the applicable Lenders a first priority Lien in all of the personal assets of such target

 

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company or surviving company, and their respective Subsidiaries, each in form and substance satisfactory to such Agent and (b) an unlimited Guaranty of the Obligations, or at the option of the applicable Agent in such Agent’s absolute discretion, a joinder agreement satisfactory to such Agent in which such target company or surviving company, and their respective Subsidiaries becomes a Borrower under this Agreement and assumes primary, joint and several liability for the Obligations; and

(xiii) in the case of an acquisition by or of a Restricted Foreign Subsidiary, (a) the applicable Agent (1) has received and reviewed the Organization Documents of each Restricted Foreign Subsidiary involved in the transaction and such Agent is satisfied in its reasonable discretion that such Organization Documents do not contain any prohibition or condition with respect to the documents described in clause (b), below, and (2) has received evidence to its reasonable satisfaction that such acquisition and the related Investments in the Restricted Foreign Subsidiaries are not prohibited by, and the pledges and guarantees described in clause (b), below, will not be deemed null and void due to the operation of, the applicable financial assistance, corporate benefit and banking monopoly laws and regulations of the jurisdiction of the relevant Restricted Foreign Subsidiary, (b) subject to the limitations set forth in Section 10.20, simultaneously with the closing of such acquisition, each Restricted Foreign Subsidiary involved in the transaction executes and delivers to the applicable Agent (1) such documents necessary to grant to such Agent for the benefit of the applicable Lenders a pledge of the Equity Interests of each direct Subsidiary of each Restricted Foreign Subsidiary involved in the transaction, each in form and substance reasonably satisfactory to such Agent, (2) an unlimited Guaranty of the Obligations by each Restricted Foreign Subsidiary involved in the transaction, or at the option of the applicable Agent in such Agent’s absolute discretion, a joinder agreement satisfactory to such Agent in which such target company or surviving company, and their respective Subsidiaries becomes a Borrower under this Agreement and assumes primary, joint and several liability for the Obligations, and (c) simultaneously with the closing of such acquisition, each Restricted Foreign Subsidiary involved in the transaction causes to be delivered to the applicable Agent opinions of counsel and other documents or information, in form, content and scope reasonably satisfactory to the applicable Agent, as may be required by the applicable Agent in its reasonable discretion.

7.05 Dispositions.

Make any Disposition or enter into any agreement to make any Disposition, except:

(a) Dispositions of obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;

(b) Dispositions of inventory in the ordinary course of business;

(c) Dispositions of equipment or real property to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property;

(d) Dispositions of property by any other Loan Party to the Company or to another Loan Party that is a wholly-owned Subsidiary; provided that if the transferor of such property is a Subsidiary Guarantor, the transferee thereof must either be the Company or a Subsidiary Guarantor;

 

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(e) Dispositions permitted by Section 7.04;

(f) Dispositions by the Company and its Subsidiaries of property pursuant to sale-leaseback transactions, provided that the book value of all property so Disposed of shall not exceed $30,000,000 from and after the Third Amendment Effective Date;

(g) non-exclusive licenses of IP Rights in the ordinary course of business and substantially consistent with past practice for terms not exceeding five years;

(h) so long as no Default has occurred or would result therefrom, (i) Dispositions of property owned by Adhesion or any of its Subsidiaries to the extent such property is no longer useful in the operations of the Company (after giving effect to the Adhesion Acquisition); provided that the aggregate book value of all property so Disposed of shall not exceed $10,000,000 and (ii) Disposition of the Excluded Kansas City Property; and

(i) Dispositions by the Company and the other Loan Parties not otherwise permitted under this Section 7.05; provided that (i) at the time of such Disposition, no Default shall exist or would result from such Disposition and (ii) the aggregate book value of all property Disposed of in reliance on this clause (i) in any fiscal year shall not exceed $5,000,000;

provided, however, that any Disposition pursuant to clauses (a) through (i) shall be for fair market value.

7.06 Restricted Payments.

Declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, or issue or sell any Equity Interests, except that, so long as no Default shall have occurred and be continuing at the time of any action described below or would result therefrom:

(a) each Subsidiary may make Restricted Payments to the Company, the Subsidiary Guarantors and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;

(b) the Company and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;

(c) the Company and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests;

(d) the Company may make regularly scheduled payments of interest in respect of Subordinated Debt to the extent permitted under the subordination provisions thereof;

(e) the Company may declare or pay cash dividends to its stockholders;

 

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(f) the Company may issue and sell its common Equity Interests, so long as the Net Cash Proceeds thereof are applied to the prepayment of the Loans pursuant to Section 2.07(d); and

(g) the Company and each Subsidiary may make Restricted Payments contemplated by the Acquisition Documentation.

7.07 Change in Nature of Business.

Engage in any material line of business substantially different from those lines of business conducted by the Company and its Subsidiaries on the date hereof or any business substantially related or incidental thereto.

7.08 Transactions with Affiliates.

Enter into any transaction of any kind with any Affiliate of the Company, whether or not in the ordinary course of business, other than on fair and reasonable terms substantially as favorable to the Company or such Loan Party as would be obtainable by the Company or such Loan Party at the time in a comparable arm’s length transaction with a Person other than an Affiliate, provided that the foregoing restriction shall not apply to transactions between or among the Company and any of its wholly-owned Subsidiaries or between and among any wholly-owned Subsidiaries.

7.09 Burdensome Agreements.

Enter into any Contractual Obligation (other than this Agreement or any other Loan Document) that (a) limits the ability (i) of any Loan Party to make Restricted Payments to the Company or any Subsidiary Guarantor or to otherwise transfer property to the Company or any Subsidiary Guarantor, (ii) of any Loan Party to Guarantee the Indebtedness of the Company or (iii) of the Company or any other Loan Party to create, incur, assume or suffer to exist Liens on property of such Person; provided, however, that this clause (iii) shall not prohibit any negative pledge incurred or provided in favor of any holder of Indebtedness permitted under Section 7.03(e) solely to the extent any such negative pledge relates to the property financed by or the subject of such Indebtedness; or (b) requires the grant of a Lien to secure an obligation of such Person if a Lien is granted to secure another obligation of such Person.

7.10 Use of Proceeds.

Use the proceeds of any Credit Extension, whether directly or indirectly, and whether immediately, incidentally or ultimately, to purchase or carry margin stock (within the meaning of Regulation U of the FRB) or to extend credit to others for the purpose of purchasing or carrying margin stock or to refund indebtedness originally incurred for such purpose.

7.11 Financial Covenants.

(a) Consolidated Net Worth. Permit Consolidated Net Worth at any time to be less than the sum of (i) $175,000,000, (ii) an amount equal to 50% of the Consolidated Net Income earned in each full fiscal quarter ending after June 30, 2011 (with no deduction for a net loss in any such fiscal quarter) and (iii) an amount equal to 85% of the aggregate increases in Shareholders’ Equity of the Company and its Subsidiaries after the date hereof by reason of (A) the issuance and sale of Equity Interests of the

 

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Company or any Subsidiary (other than issuances to the Company or a wholly-owned Subsidiary), including upon any conversion of debt securities of the Company into such Equity Interests or (B) the Adhesion Acquisition or any Permitted Acquisition.

(b) Consolidated Interest Coverage Ratio. Permit the Consolidated Interest Coverage Ratio as of the last day of any fiscal quarter of the Company to be less than 4.00:1.00.

(c) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio as of the last day of any fiscal quarter of the Company in the applicable table set forth below to be greater than the ratio set forth below opposite such period in such table:

(i) to the extent that the Delayed Draw Borrowing Date has not occurred as of such date of determination:

 

Computation Period Ending		Maximum Consolidated Leverage Ratio
June 30, 2011			3.75:1.00
September 30, 2011 through March 31, 2012			3.25:1.00
June 30, 2012 and each fiscal quarter thereafter			3.00:1.00

(ii) to the extent that the Delayed Draw Borrowing Date has occurred as of such date of determination:

 

Computation Period Ending		Maximum Consolidated Leverage Ratio
June 30, 2011 through March 31, 2012			4.25:1.00
June 30, 2012 through September 30, 2012			4.00:1.00
December 31, 2012 through March 31, 2013			3.75:1.00
June 30, 2013 through December 31, 2013			3.50:1.00
March 31, 2014 through June 30, 2014			3.25:1.00
September 30, 2014 and each fiscal quarter thereafter			3.00:1.00

7.12 Capital Expenditures.

Make or become legally obligated to make any expenditure in respect of the purchase or other acquisition of any fixed or capital asset (excluding normal replacements and maintenance which are properly charged to current operations), except for capital expenditures in the ordinary course of business not exceeding:

(i) to the extent that the Delayed Draw Borrowing Date has not occurred, $25,000,000 in the aggregate for the Company and it Subsidiaries during each fiscal year; provided, however, that so long as no Default has occurred and is continuing or would result from such expenditure, any portion of any

 

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amount set forth in this clause (i), if not expended in the fiscal year for which it is permitted, may be carried over for expenditure in the next following fiscal year. Capital expenditures in any fiscal year shall be deemed to use first, the $25,000,000 permitted in such fiscal year, and second, any amount carried forward to such fiscal year pursuant to this clause;

(ii) to the extent that the Delayed Draw Borrowing Date has occurred, $40,000,000 in the aggregate for the Company and it Subsidiaries during each fiscal year; provided, however, that so long as no Default has occurred and is continuing or would result from such expenditure, fifty percent (50%) of any portion of any amount set forth in this clause (ii), if not expended in the fiscal year for which it is permitted, may be carried over for expenditure in the next following fiscal year. Capital expenditures in any fiscal year shall be deemed to use first, the $40,000,000 permitted in such fiscal year, and second, any amount carried forward to such fiscal year pursuant to this clause;

provided further, however, that the following shall not be considered capital expenditures for the purposes of this Section 7.12: (A) capital expenditures incurred by any Person prior to the date on which such Person became a Subsidiary of the Company, and (B) assets purchased by the Company or a Subsidiary thereof pursuant to a Permitted Acquisition or the Adhesion Acquisition.

7.13 Modification of Certain Documents.

(a) Permit (i) the charter, by-laws or other organizational documents of any Loan Party to be amended or modified in any way which could reasonably be expected to materially adversely affect the interests of the Lenders or (ii) any amendments, modifications or waivers of any Adhesion Acquisition Document that, individually or in the aggregate, are material to the interests of the Lenders as reasonably determined by the Joint Lead Arrangers and the Administrative Agent (it being understood that, without limitation, any change in (A) in the amount or form of the Adhesion Acquisition purchase price or the portion of such purchase price comprised of common equity interests of the Company (other than any reduction in such purchase price that does not reduce the portion of such purchase price comprised of common equity interests of the Company below the threshold determined in accordance with Section 4.03(b)(ii)) or any method of calculating the per share price utilized in determining the equity consideration for the Adhesion Acquisition or (B) the third party beneficiary rights applicable to the Joint Lead Arrangers, the Administrative Agent or the Lenders, shall in each case be deemed to be material to the interests of the Lenders); or

(b) change, or allow any Loan Party to change, its state of formation or its organizational form.

7.14 Cancellation of Debt.

Cancel, or permit any other Loan Party to cancel, any claim or debt owing to it from any other Person (other than the Company or any Subsidiary), except for reasonable consideration or in the ordinary course of business, and except for the cancellation of other debts or claims not to exceed $5,000,000 in any fiscal year.

 

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ARTICLE VIII.

EVENTS OF DEFAULT AND REMEDIES

8.01 Events of Default.

Any of the following shall constitute an Event of Default:

(a) Non-Payment. Any Borrower or any other Loan Party fails to pay (i) when and as required to be paid herein, and in the currency required hereunder, any amount of principal of any Loan or any L/C Obligation, or (ii) within three Business Days after the same becomes due, any interest on any Loan or on any L/C Obligation, or any fee due hereunder, or (iii) within five Business Days after the same becomes due, any other amount payable hereunder or under any other Loan Document; or

(b) Specific Covenants. The Company fails to perform, in any material respect, or observe any term, covenant or agreement contained in any of Section 6.01(a), 6.01(b), 6.05, 6.10, 6.11 or 6.13 or Article VII, or the Company or any Subsidiary Guarantor fails to perform or observe any term, covenant or agreement contained in Section 5 of the U.S. Guaranty and Collateral Agreement or Clause 11 of the Australian Deed of Guarantee and Indemnity; or

(c) Other Defaults. Any Loan Party fails to perform or observe any other covenant or agreement (not specified in subsection (a) or (b) above) contained in any Loan Document on its part to be performed or observed and such failure continues for 30 days; or

(d) Representations and Warranties. Any representation, warranty, certification or statement of fact made or deemed made by or on behalf of the Company or any other Loan Party herein, in any other Loan Document, or in any document delivered in connection herewith or therewith shall be incorrect or misleading on the date as of which the facts therein set forth are stated or certified; or

(e) Cross-Default. (i) The Company or any Subsidiary (A) fails to make any payment when due after giving effect to any applicable grace periods (whether by scheduled maturity, required prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee (other than Indebtedness hereunder and Indebtedness under Swap Contracts) having an aggregate principal amount (including undrawn committed or available amounts and including amounts owing to all creditors under any combined or syndicated credit arrangement) of more than the Threshold Amount, or (B) fails to observe or perform any other agreement or condition relating to any such Indebtedness or Guarantee or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause, or to permit the holder or holders of such Indebtedness or the beneficiary or beneficiaries of such Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded; or (ii) there occurs under any Swap Contract an Early Termination Date (as defined in such Swap Contract) resulting from (A) any event of default under such Swap Contract as to which the Company or any Subsidiary is the Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event (as so defined) under such Swap Contract as to which the Company or any

 

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Subsidiary is an Affected Party (as so defined) and, in either event, the Swap Termination Value owed by the Company or such Subsidiary as a result thereof is greater than the Threshold Amount; or

(f) Insolvency Proceedings, Etc. Any Loan Party or any of its Subsidiaries institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 60 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to all or any material part of its property is instituted without the consent of such Person and continues undismissed or unstayed for 60 calendar days, or an order for relief is entered in any such proceeding; or

(g) Inability to Pay Debts; Attachment. (i) The Company or any Subsidiary becomes unable or admits in writing its inability or fails generally to pay its debts as they become due, or (ii) any writ or warrant of attachment or execution or similar process is issued or levied against all or any material part of the property of any such Person and is not released, vacated or fully bonded within 60 days after its issue or levy; or

(h) Judgments. There is entered against the Company or any Subsidiary (i) one or more final judgments or orders for the payment of money in an aggregate amount (as to all such judgments or orders) exceeding the Threshold Amount (to the extent not covered by independent third-party insurance as to which the insurer does not dispute coverage), or (ii) any one or more non-monetary final judgments that have, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect and, in either case, (A) enforcement proceedings are commenced by any creditor upon such judgment or order, or (B) there is a period of 10 consecutive days during which a stay of enforcement of such judgment, by reason of a pending appeal or otherwise, is not in effect; or

(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or Multiemployer Plan which has resulted or could reasonably be expected to result in liability of the Company under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold Amount, or (ii) the Company or any ERISA Affiliate fails to pay when due, after the expiration of any applicable grace period, any installment payment with respect to its withdrawal liability under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or

(j) Invalidity of Loan Documents. Any material provision of any Loan Document, at any time after its execution and delivery and for any reason other than as expressly permitted hereunder or thereunder or satisfaction in full of all the Obligations, ceases to be in full force and effect; or any Loan Party contests in any manner the validity or enforceability of any provision of any Loan Document; or any Loan Party denies that it has any or further liability or obligation under any Loan Document, or purports to revoke, terminate or rescind any provision of any Loan Document other than in accordance with the terms thereof; or

(k) Change of Control. There occurs any Change of Control.

 

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8.02 Remedies Upon Event of Default.

If any Event of Default occurs and is continuing, the Administrative Agent shall, at the request of, or may, with the consent of, the Required Lenders, take any or all of the following actions:

(a) declare the commitment of each Lender to make Loans and any obligation of each L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;

(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by the Borrowers;

(c) require that the Company Cash Collateralize the L/C Obligations (in an amount equal to the then Outstanding Amount thereof); and

(d) exercise on behalf of itself, the Lenders and the L/C Issuers all rights and remedies available to it, the Lenders and the L/C Issuers under the Loan Documents;

provided, however, that upon the occurrence of an actual or deemed entry of an order for relief with respect to any Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of each L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Company to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.

8.03 Application of Funds.

After the exercise of remedies provided for in Section 8.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02), any amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order:

First, to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (including fees, charges and disbursements of counsel to each Agent and amounts payable under Article III) payable to each Agent in its capacity as such;

Second, to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest, Letter of Credit Fees and amounts relating to Swap Contracts and Secured Cash Management Agreements) payable to the Lenders and the L/C Issuers (including fees, charges and disbursements of counsel to the respective Lenders and L/C Issuers (including fees and time charges for attorneys who may be employees of any Lender or L/C Issuer) and amounts payable under Article III), ratably among them in proportion to the respective amounts described in this clause Second payable to them;

 

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Third, to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations, ratably among the Lenders and the L/C Issuers in proportion to the respective amounts described in this clause Third payable to them;

Fourth, to payment of that portion of the Obligations constituting unpaid principal of the Loans and L/C Borrowings, obligations relating to Swap Contracts approved by the Administrative Agent and incurred in favor of a Lender or an Affiliate thereof and payment to the Administrative Agent and the Australian Administrative Agent for the account of the respective L/C Issuers, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit; ratably among the Lenders, the L/C Issuers, the Administrative Agent and the Australian Administrative Agent in proportion to the respective amounts described in this clause Fourth held by them;

Fifth, to payment of that portion of the Obligations constituting obligations relating to Secured Cash Management Agreements; and

Last, the balance, if any, after all of the Obligations have been indefeasibly paid in full, to the Company or as otherwise required by Law.

Subject to Section 2.03(c), amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur. If any amount remains on deposit as Cash Collateral after all Letters of Credit have either been fully drawn or expired, such remaining amount shall be applied to the other Obligations, if any, in the order set forth above.

ARTICLE IX. AGENTS

9.01 Appointment and Authority.

(a) Each of the U.S. Sub-facility Lenders and the U.S. L/C Issuer hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.

(b) Each of the Australian Sub-facility Lenders and the Australian L/C Issuer hereby irrevocably appoints Westpac to act on its behalf as the Australian Administrative Agent hereunder and under the other Loan Documents and authorizes the Australian Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Australian Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto.

The provisions of this Article are solely for the benefit of the Agents, the Lenders and the L/C Issuers, and neither any Borrower nor any other Loan Party shall have rights as a third party beneficiary of any of such provisions.

 

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9.02 Rights as a Lender.

Each Person serving as an Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not an Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include each Person serving as an Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrowers or any Subsidiary or other Affiliate thereof as if such Person were not an Agent hereunder and without any duty to account therefor to the Lenders.

9.03 Exculpatory Provisions.

Neither Agent shall have any duties or obligations except those expressly set forth herein and in the other Loan Documents. Without limiting the generality of the foregoing, neither Agent:

(a) shall be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing;

(b) shall have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that such Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that such Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose such Agent to liability or that is contrary to any Loan Document or applicable Laws; and

(c) shall, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to any of the Borrowers or any of their respective Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or the Australian Administrative Agent, as the case may be, or any of its Affiliates in any capacity.

Any action taken by any Agent in accordance with the Loan Documents binds all the Lenders or all the applicable Lenders, as the case may be.

Neither Agent shall be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as such Agent shall believes in good faith shall be necessary, under the circumstances as provided in Sections 10.01 and 8.02) or (ii) in the absence of its own gross negligence or willful misconduct. Each Agent shall be deemed not to have knowledge of any Default unless and until notice describing such Default is given to such Agent by the Company, a Lender or an L/C Issuer.

Neither Agent shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants,

 

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agreements or other terms or conditions set forth herein or therein or the occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to such Agent.

9.04 Reliance by Agents.

Each Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Each Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the L/C Issuer, each Agent may presume that such condition is satisfactory to such Lender or the L/C Issuer unless such Agent shall have received notice to the contrary from such Lender or the L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. Each Agent may consult with legal counsel (who may be counsel for the Company), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

9.05 Delegation of Duties.

Each Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by such Agent. Each Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of such Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as an Agent.

9.06 Resignation of an Agent.

Either Agent may at any time give notice of its resignation to the Lenders, the L/C Issuer and the Company. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with the Company, to appoint a successor, which, with respect to the successor to the Administrative Agent, shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States, and, with respect to the successor to the Australian Administrative Agent, shall be a bank with an office in Australia, or an Affiliate of any such bank with an office in Australia. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Agent gives notice of its resignation, then the retiring Agent may on behalf of the Lenders and the L/C Issuers, appoint a successor Agent meeting the qualifications set forth above; provided that if such Agent shall notify the Company and the Lenders that no qualifying Person has accepted such appointment, then such resignation shall nonetheless become effective in accordance with such notice and (1) the retiring Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral

 

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security held by such Agent on behalf of the Lenders or an L/C Issuer under any of the Loan Documents, the retiring Agent shall continue to hold such collateral security until such time as a successor Agent is appointed) and (2) all payments, communications and determinations provided to be made by, to or through such Agent shall instead be made by or to each applicable Lender and each applicable L/C Issuer directly, until such time as the Required Lenders appoint a successor Agent as provided for above in this Section. Upon the acceptance of a successor’s appointment as Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) Agent, and the retiring Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section). The fees payable by the Company to a successor Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After the retiring Agent’s resignation hereunder and under the other Loan Documents, the provisions of this Article and Section 10.04 shall continue in effect for the benefit of such retiring Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring Agent was acting as an Agent.

Any resignation by Bank of America as Administrative Agent pursuant to this Section shall also constitute its resignation as U.S. L/C Issuer and Swing Line Lender. Any resignation by Westpac as Australian Administrative Agent pursuant to this Section shall also constitute its resignation as Australian L/C Issuer. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring U.S. L/C Issuer and Swing Line Lender, (b) the retiring U.S. L/C Issuer and Swing Line Lender shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (c) the successor U.S. L/C Issuer shall issue letters of credit in substitution for the U.S. Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring U.S. L/C Issuer to effectively assume the obligations of the retiring U.S. L/C Issuer with respect to such U.S. Letters of Credit. Upon the acceptance of a successor’s appointment as Australian Administrative Agent hereunder, (x) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring Australian L/C Issuer, (y) the retiring Australian L/C Issuer shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (z) the successor Australian L/C Issuer shall issue letters of credit in substitution for the Australian Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring Australian L/C Issuer to effectively assume the obligations of the retiring Australian L/C Issuer with respect to such Australian Letters of Credit.

9.07 Non-Reliance on Agents and Other Lenders.

Each Lender and each L/C Issuer acknowledges that it has, independently and without reliance upon either Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each L/C Issuer also acknowledges that it will, independently and without reliance upon either Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

 

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9.08 No Other Duties, Etc.

Anything herein to the contrary notwithstanding, none of the Book Manager, Arranger, the Joint Lead Arrangers or Co-Documentation Agents listed on the cover page hereof shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, the Australian Administrative Agent, a Lender, the Australian L/C Issuer or the U.S. L/C Issuer hereunder.

9.09 Agents May File Proofs of Claim.

In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, either Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether such Agent shall have made any demand on any Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise

(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuers and the Agents (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuers and the Agents and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuers and the Agents under Sections 2.03(i) and (j), 2.09 and 10.04) allowed in such judicial proceeding; and

(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make such payments to the applicable Agent and, in the event that such Agent shall consent to the making of such payments directly to the Lenders and L/C Issuers, to pay to the applicable Agent any amount due for the reasonable compensation, expenses, disbursements and advances of such Agent and its agents and counsel, and any other amounts due such Agent under Sections 2.09 and 10.04.

Nothing contained herein shall be deemed to authorize any Agent to authorize or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any L/C Issuer to authorize either Agent to vote in respect of the claim of any Lender or any L/C Issuer in any such proceeding.

9.10 Collateral and Guaranty Matters.

The Lenders (including in its capacities as a potential Cash Management Bank and a potential counterparty to a Swap Contract) and the L/C Issuers irrevocably authorize the each Agent, at its option and in its discretion,

(a) to release any Lien on any property granted to or held by such Agent under any Loan Document (i) upon termination of the Aggregate Commitments and payment in full of all

 

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Obligations (other than contingent indemnification obligations) and the expiration or termination of all Letters of Credit, (ii) that is sold or to be sold as part of or in connection with any sale permitted hereunder or under any other Loan Document, or (iii) subject to Section 10.01, if approved, authorized or ratified in writing by the Required Lenders;

(b) to subordinate any Lien on any property granted to or held by such Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 7.01(i); and

(c) to release any Subsidiary Guarantor from its obligations under either Guaranty and Collateral Agreement if such Person ceases to be a Subsidiary as a result of a transaction permitted hereunder.

Upon request by either Agent at any time, the Required Lenders will confirm in writing the applicable Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Subsidiary Guarantor from its obligations under either Guaranty and Collateral Agreement pursuant to this Section 9.10.

9.11 Secured Cash Management Agreements and Swap Contracts. Except as otherwise expressly set forth herein or in the other Loan Documents, no Cash Management Bank or any counterparty to a Swap Contract that obtains the benefits of Section 8.03, the Guaranty and Collateral Agreements or any Collateral by virtue of the provisions hereof or of the other Loan Documents shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article IX to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Cash Management Agreements and Swap Contracts unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or the counterparty to the Swap Contracts, as the case may be.

ARTICLE X.

MISCELLANEOUS

10.01 Amendments, Etc.

No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by the Company or any other Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders and the Company or the applicable Loan Party, as the case may be, and acknowledged by the Agents, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment, waiver or consent shall:

(a) waive any condition set forth in Section 4.01(a) without the written consent of each Lender or waive any condition set forth in Section 4.03 that would require the U.S. Sub-facility Lenders

 

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with Term A Loan Commitments to fund Term A Loans under the Delayed Draw Sub-facility when such U.S. Sub-facility Lenders would not otherwise be required to do so without the consent of U.S. Sub-facility Lenders holding greater than 50% of the aggregate principal amount of the Term A Loan Commitments with respect to the Delayed Draw Sub-facility;

(b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 8.02) without the written consent of such Lender;

(c) postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the written consent of each Lender directly and adversely affected thereby;

(d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso to this Section 10.01) any fees or other amounts payable hereunder or under any other Loan Document without the written consent of each Lender directly and adversely affected thereby; provided, however, that only the consent of the Required Lenders shall be necessary (i) to amend the definition of “Default Rate” or to waive any obligation of any Borrower to pay interest or Letter of Credit Fees at the Default Rate or (ii) to amend any financial covenant hereunder (or any defined term used therein) even if the effect of such amendment would be to reduce the rate of interest on any Loan or L/C Borrowing or to reduce any fee payable hereunder;

(e) change Section 2.13 or Section 8.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender directly and adversely affected thereby;

(f) change any provision of this Section or the definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder without the written consent of each Lender;

(g) release the Company or any Subsidiary Guarantor from either Guaranty and Collateral Agreement without the written consent of each Lender directly and adversely affected thereby, except to the extent the release of any Subsidiary Guarantor is permitted pursuant to Section 9.10 (in which case such release may be made by the applicable Agent acting alone);

(h) release all or substantially all of the Collateral in any transaction or series of related transactions without the consent of each Lender; or

(i) amend the definition of “Alternative Currency” without the written consent of each Lender.

and, provided further, that (i) no amendment, waiver or consent shall, unless in writing and signed by the applicable L/C Issuer in addition to the Lenders required above, affect the rights or duties of such L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Swing Line Lender in addition to the Lenders required above, affect the rights or duties of the Swing Line Lender under this

 

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Agreement; (iii) no amendment, waiver or consent shall, unless in writing and signed by the applicable Agent in addition to the Lenders required above, affect the rights or duties of such Agent under this Agreement or any other Loan Document; and (iv) any of the agreements specified in the definition of “Fee Letter” may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto. Notwithstanding anything to the contrary herein, (A) no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except that the Commitment of such Lender may not be increased or extended without the consent of such Lender and (B) the Company shall be permitted to enter into amendments and modifications necessary or appropriate to effectuate customary “amend and extend” transactions with only the consent of the Administrative Agent and those Lenders agreeing to extend the maturity date of their respective Commitments or Loans, as applicable; provided that, in each case under this clause (B), each Lender under the applicable tranche or sub-facility that is being extended shall have been given the opportunity (but shall not be obligated) to participate on a pro rata basis in such extension and provided further that in the case of any amendment and extension of any Commitment under either of the Revolving Credit Facilities, the funding of all Committed Loans and refundings and participations in Letters of Credit and, if applicable, Swing Line Loans under such Revolving Credit Facility shall continue to be made in accordance with the Applicable Percentages of each of the Lenders under such Revolving Credit Facility (whether or not such Lenders have agreed to participate in the extension) until the original maturity of such Revolving Credit Facility.

10.02 Notices; Effectiveness; Electronic Communication.

(a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in subsection (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:

(i) if to a Borrower, an Agent, an L/C Issuer or the Swing Line Lender, to the address, telecopier number, electronic mail address or telephone number specified for such Person on Schedule 10.02; and

(ii) if to any other Lender, to the address, telecopier number, electronic mail address or telephone number specified in its Administrative Questionnaire.

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through electronic communications to the extent provided in subsection (b) below, shall be effective as provided in such subsection (b).

Except where expressly provided otherwise, all correspondence under or in relation to the Loan Documents between a Lender on the one hand, and a Borrower on the other, will be addressed to the applicable Agent, and the Lenders and the Borrowers severally agree to deal with and through the applicable Agent in accordance with this Agreement.

 

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(b) Electronic Communications. Notices and other communications to the Lenders and the L/C Issuers hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or L/C Issuer pursuant to Article II if such Lender or L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Company may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.

Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), provided that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

(c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to any Borrower, any Lender, either L/C Issuer or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of any Borrower’s or the Administrative Agent’s transmission of Borrower Materials through the Internet, except to the extent that such losses, claims, damages, liabilities or expenses are determined by a court of competent jurisdiction by a final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Agent Party; provided, however, that in no event shall any Agent Party have any liability to any Borrower, any Lender, either L/C Issuer or any other Person for indirect, special, incidental, consequential or punitive damages (as opposed to direct or actual damages).

(d) Change of Address, Etc. Each of the Borrowers, each Agent, each L/C Issuer and the Swing Line Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, telecopier or telephone number for notices and other communications hereunder by notice to the Company, the Agents, the L/C Issuers and the Swing Line Lender. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone number, telecopier number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such

 

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Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state securities laws.

(e) Reliance by Agents, L/C Issuers and Lenders. The Agents, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices (including telephonic Committed Loan Notices and Swing Line Loan Notices) purportedly given by or on behalf of any Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Company shall indemnify each Agent, each L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of any Borrower. All telephonic notices to and other telephonic communications with either Agent may be recorded by such Agent, and each of the parties hereto hereby consents to such recording.

10.03 No Waiver; Cumulative Remedies.

No failure by any Lender or any Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

10.04 Expenses; Indemnity; Damage Waiver.

(a) Costs and Expenses. The Company shall pay (i) all reasonable out-of-pocket expenses incurred by the Agents and their Affiliates (including the reasonable fees, charges and disbursements of counsel for the Agents), in connection with the syndication of the credit facilities provided for herein, the preparation, negotiation, execution, delivery and administration of this Agreement and the other Loan Documents or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (ii) all reasonable out-of-pocket expenses incurred by either L/C Issuer in connection with the issuance, amendment, renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all out-of-pocket expenses incurred by either Agent, any Lender or either L/C Issuer (including the fees, charges and disbursements of any counsel for either Agent, any Lender or either L/C Issuer), and shall pay all fees and time charges for attorneys who may be employees of either Agent, any Lender or either L/C Issuer, in connection with the enforcement or protection of its rights (A) in connection with this Agreement and the other Loan Documents, including its rights under this Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans or Letters of Credit.

 

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(b) Indemnification by the Company. The Company shall indemnify each Agent (and any sub-agent thereof), each Lender and each L/C Issuer, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or by any Borrower or any other Loan Party arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of an Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by an L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or release of Hazardous Materials on or from any property owned or operated by any Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to any Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Company or any other Loan Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by the Company or any other Loan Party against an Indemnitee for breach in bad faith of such Indemnitee’s obligations hereunder or under any other Loan Document, if the Company or such other Loan Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction.

(c) Reimbursement by Lenders. To the extent that the Company for any reason fails to indefeasibly pay any amount required under subsection (a) or (b) of this Section to be paid by it to either Agent (or any sub-agent thereof), either L/C Issuer or any Related Party of any of the foregoing, each Lender severally agrees to pay to such Agent (or any such sub-agent), such L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against such Agent (or any such sub-agent) or such L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for such Agent (or any such sub-agent) or L/C Issuer in connection with such capacity. The obligations of the Lenders under this subsection (c) are subject to the provisions of Section 2.12(d).

(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable Laws, no Borrower shall assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in subsection (b) above

 

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shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and nonappealable judgment of a court of competent jurisdiction.

(e) Payments. All amounts due under this Section shall be payable not later than ten Business Days after demand therefor.

(f) Survival. The agreements in this Section shall survive the resignation of either Agent, either L/C Issuer and the Swing Line Lender, the replacement of any Lender, the termination of the Aggregate Commitments and the repayment, satisfaction or discharge of all the other Obligations.

10.05 Payments Set Aside.

To the extent that any payment by or on behalf of any Borrower is made to either Agent, either L/C Issuer or any Lender, or either Agent, either L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by such Agent, such L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and each L/C Issuer severally agrees to pay to the applicable Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by such Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the applicable Overnight Rate from time to time in effect, in the applicable currency of such recovery or payment. The obligations of the Lenders and the L/C Issuer under clause (b) of the preceding sentence shall survive the payment in full of the Obligations and the termination of this Agreement.

10.06 Successors and Assigns.

(a) Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that neither any Borrower nor any other Loan Party may assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of subsection (b) of this Section, (ii) by way of participation in accordance with the provisions of subsection (d) of this Section, or (iii) by way of pledge or assignment of a security interest subject to the restrictions of subsection (f) of this Section (and any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in subsection (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties of each of the Agents, the L/C Issuers and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

 

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(b) Assignments by Lenders. Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans (including for purposes of this subsection (b), participations in L/C Obligations and in Swing Line Loans) at the time owing to it); provided that any such assignment shall be subject to the following conditions:

(i) Minimum Amounts.

(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment and the Loans at the time owing to it or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and

(B) in any case not described in subsection (b)(i)(A) of this Section, the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the applicable Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000, in the case of any assignment in respect of U.S. Revolving Commitments, Australian Revolving Commitments, or Revolving Loans thereunder, or $1,000,000, in the case of any assignment in respect of Term A Loans unless each of the applicable Agents and, so long as no Event of Default has occurred and is continuing, the Company otherwise consents (each such consent not to be unreasonably withheld or delayed); provided, however, that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.

(ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause (ii) shall not apply to the Swing Line Lender’s rights and obligations in respect of Swing Line Loans;

(iii) Required Consents. No consent shall be required for any assignment except to the extent required by subsection (b)(i)(B) of this Section and, in addition:

(A) the consent of the applicable Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (1) an Event of Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;

(B) the consent of the applicable Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (1) any Term A Loan, U.S. Revolving Commitment or Australian Revolving Commitment if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with

 

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respect to such Lender or (2) any Term A Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund;

(C) the consent of the applicable L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more Letters of Credit (whether or not then outstanding); and

(D) the consent of the Swing Line Lender (such consent not to be unreasonably withheld or delayed) shall be required for any assignment in respect of the U.S. Sub-facility (other than the Term A Loans).

(iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to the applicable Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided, however, that such Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.

(v) No Assignment to Company. No such assignment shall be made to the Company or any of the Company’s Affiliates or Subsidiaries.

(vi) No Assignment to Natural Persons. No such assignment shall be made to a natural person.

Subject to acceptance and recording thereof by the applicable Agent pursuant to subsection (c) of this Section, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections 3.01, 3.04, 3.05, and 10.04 with respect to facts and circumstances occurring prior to the effective date of such assignment. Upon request, each Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this subsection shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with subsection (d) of this Section.

(c) Register. The applicable Agent, acting solely for this purpose as an agent of the Borrowers, shall maintain at the Administrative Agent’s Office or the Australian Administrative Agent’s Office, as the case may be, a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive, and the Borrowers, the Agents and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.

 

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The Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

(d) Participations. Any Lender may at any time, without the consent of, or notice to, any Borrower or either Agent, sell participations to any Person (other than a natural person or the Company or any of the Company’s Affiliates or Subsidiaries) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations and/or Swing Line Loans) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrowers, the Agents, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.

Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in the first proviso to Section 10.01 that affects such Participant. Subject to subsection (e) of this Section, each Borrower agrees that each Participant shall be entitled to the benefits of Sections 3.01 (subject to delivery by such Participant of the documents required pursuant to Section 3.01(e)) , 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to subsection (b) of this Section. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender, provided such Participant agrees to be subject to Section 2.13 as though it were a Lender.

(e) Limitations upon Participant Rights. A Participant shall not be entitled to receive any greater payment under Section 3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Company’s prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 3.01 unless the Company is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrowers, to comply with Section 3.01(e) as though it were a Lender.

(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note(s), if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

(g) Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Laws, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

 

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(h) Resignation as L/C Issuer or Swing Line Lender after Assignment. Notwithstanding anything to the contrary contained herein, if at any time Bank of America assigns all of its U.S. Revolving Commitment and U.S. Revolving Loans pursuant to subsection (b) above, Bank of America may, (i) upon 30 days’ notice to the Company and the Lenders, resign as U.S. L/C Issuer and/or (ii) upon 30 days’ notice to the Company, resign as Swing Line Lender. Notwithstanding anything to the contrary contained herein, if at any time Westpac assigns all of its Australian Revolving Commitment and Australian Revolving Loans pursuant to subsection (b) above, Westpac may, upon 30 days’ notice to the Company and the Lenders, resign as Australian L/C Issuer. In the event of any such resignation as an L/C Issuer or Swing Line Lender, the Company shall be entitled to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender hereunder; provided, however, that no failure by the Company to appoint any such successor shall affect the resignation of Bank of America as U.S. L/C Issuer or Swing Line Lender, as the case may be, or the resignation of Westpac as Australian L/C Issuer. If Bank of America or Westpac resigns as U.S. L/C Issuer or Australian L/C Issuer, as the case may be, it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters of Credit issued by it outstanding as of the effective date of its resignation as an L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c)). If Bank of America resigns as Swing Line Lender, it shall retain all the rights of the Swing Line Lender provided for hereunder with respect to Swing Line Loans made by it and outstanding as of the effective date of such resignation, including the right to require the Lenders to make Base Rate Committed Loans or fund risk participations in outstanding Swing Line Loans pursuant to Section 2.04(c). Upon the appointment of a successor L/C Issuer and/or Swing Line Lender, (a) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer or Swing Line Lender, as the case may be, and (b) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to Bank of America or Westpac, as the case may be, to effectively assume the obligations of Bank of America or Westpac, as the case may be, with respect to such Letters of Credit.

10.07 Treatment of Certain Information; Confidentiality.

Each of the Agents, the Lenders and the L/C Issuers agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent requested by any regulatory authority purporting to have jurisdiction over it (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.15(c) or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to a Borrower and its obligations, (g) with the consent of the Company or (h) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section or (y) becomes available to either Agent, any Lender, either

 

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L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Company.

For purposes of this Section, “Information” means all information received from the Company or any Subsidiary relating to the Company or any Subsidiary or any of their respective businesses, other than any such information that is available to either Agent, any Lender or either L/C Issuer on a nonconfidential basis prior to disclosure by the Company or any Subsidiary, provided that, in the case of information received from the Company or any Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

Each of the Agents, the Lenders and the L/C Issuers acknowledges that (a) the Information may include material non-public information concerning the Company or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws.

10.08 Right of Setoff.

If an Event of Default shall have occurred and be continuing, each Lender, each L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, after obtaining the prior written consent of the Administrative Agent, to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by such Lender, such L/C Issuer or any such Affiliate to or for the credit or the account of any Borrower or any other Loan Party against any and all of the obligations of such Borrower or such Loan Party now or hereafter existing under this Agreement or any other Loan Document to such Lender or such L/C Issuer, irrespective of whether or not such Lender or such L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of such Borrower or such Loan Party may be contingent or unmatured or are owed to a branch or office of such Lender or such L/C Issuer different from the branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender, each L/C Issuer and their respective Affiliates under this Section are in addition to other rights and remedies (including other rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates may have. Each Lender and each L/C Issuer agrees to notify the Company and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.

10.09 Interest Rate Limitation.

Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If either Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Company. In determining whether the interest contracted for, charged, or received by an Agent or a Lender exceeds the Maximum Rate, such

 

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Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

10.10 Counterparts; Integration; Effectiveness.

This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Agents and when the Agents shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a manually executed counterpart of this Agreement.

10.11 Survival of Representations and Warranties.

All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by each Agent and each Lender, regardless of any investigation made by either Agent or any Lender or on their behalf and notwithstanding that either Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder shall remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.

10.12 Severability.

If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

10.13 Replacement of Lenders.

If (i) any Lender requests compensation under Section 3.04, (ii) any Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 3.01, (iii) any Lender is a Defaulting Lender, (iv) any Lender does not consent to a proposed amendment, waiver, consent or release with respect to any Loan Document that has received the consent of the Required Lenders, but requires the consent of all Lenders or all affected Lenders, or (v) any other circumstance exists hereunder that gives the Company the right to replace a Lender as a party hereto, then the Company may, at its sole expense and effort, upon notice to such Lender and each Agent,

 

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require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.06), all of its interests, rights and obligations under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:

(a) the Company shall have paid (or caused a Designated Borrower to pay) to the applicable Agent the assignment fee specified in Section 10.06(b);

(b) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents (including any amounts under Section 3.05) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Company or applicable Designated Borrower (in the case of all other amounts);

(c) in the case of any such assignment resulting from a claim for compensation under Section 3.04 or payments required to be made pursuant to Section 3.01, such assignment will result in a reduction in such compensation or payments thereafter;

(d) such assignment does not conflict with applicable Laws; and

(e) in the case of any assignment under a situation described in subpart (iv) above, such replacement, when combined with all other replacements effectuated by this Section for such purpose, will allow the action or event giving rise to such right of replacement to be successfully consummated.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Company to require such assignment and delegation cease to apply.

10.14 Governing Law; Jurisdiction; Etc.

(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (NOT INCLUDING SUCH STATE’S CONFLICT OF LAWS PROVISIONS OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

(b) SUBMISSION TO JURISDICTION. EACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK (IN EACH CASE SITTING IN THE BOROUGH OF MANHATTAN), AND ANY APPELLATE COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF ANY JUDGMENT, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.

 

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EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT EITHER AGENT, ANY LENDER OR EITHER L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST ANY BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

(c) WAIVER OF VENUE. EACH BORROWER AND EACH OTHER LOAN PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

(d) SERVICE OF PROCESS. EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION 10.02. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

10.15 Waiver of Jury Trial.

EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

10.16 No Advisory or Fiduciary Responsibility.

In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), each Borrower and each other Loan Party acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the arranging and other services regarding this Agreement provided by the Agents, the Arranger and the Joint Lead Arrangers are arm’s-length commercial transactions between such Borrower, each other Loan Party and their respective Affiliates, on the one hand, and the Agents, the

 

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Arranger and the Joint Lead Arrangers, on the other hand, (B) each of such Borrower and the other Loan Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) such Borrower and each other Loan Party is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each of the Agents, the Arranger and the Joint Lead Arrangers is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for such Borrower, any other Loan Party or any of their respective Affiliates, or any other Person and (B) none of the Agents, the Arranger or the Joint Lead Arrangers has any obligation to such Borrower, any other Loan Party or any of their respective Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Agents, the Arranger and the Joint Lead Arrangers and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of such Borrower, the other Loan Parties and their respective Affiliates, and none of the Agents, the Arranger or the Joint Lead Arrangers has any obligation to disclose any of such interests to the Borrower, any other Loan Party or any of their respective Affiliates. To the fullest extent permitted by law, each of the Borrowers and the other Loan Parties hereby waives and releases any claims that it may have against either Agent, the Arranger or either Joint Lead Arranger with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

10.17 USA PATRIOT Act Notice.

Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrowers that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “Act”), it is required to obtain, verify and record information that identifies the Borrowers, which information includes the name and address of each Borrower and other information that will allow such Lender or the Administrative Agent, as applicable, to identify such Borrower in accordance with the Act.

10.18 Judgment Currency.

If, for the purposes of obtaining judgment in any court, it is necessary to convert a sum due hereunder or any other Loan Document in one currency into another currency, the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrative Agent could purchase the first currency with such other currency on the Business Day preceding that on which final judgment is given. The obligation of each Borrower in respect of any such sum due from it to the Administrative Agent or any Lender hereunder or under the other Loan Documents shall, notwithstanding any judgment in a currency (the “Judgment Currency”) other than that in which such sum is denominated in accordance with the applicable provisions of this Agreement (the “Agreement Currency”), be discharged only to the extent that on the Business Day following receipt by the Administrative Agent or such Lender, as the case may be, of any sum adjudged to be so due in the Judgment Currency, the Administrative Agent or such Lender, as the case may be, may in accordance with normal banking procedures purchase the Agreement Currency with the Judgment Currency. If the amount of the Agreement Currency so purchased is less than the sum originally due to the Administrative Agent or any Lender from any Borrower in the Agreement Currency, such Borrower agrees, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrative Agent or such Lender, as the case may be, against such loss. If the amount of the Agreement Currency so purchased is greater than the

 

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sum originally due to the Administrative Agent or any Lender in such currency, the Administrative Agent or such Lender, as the case may be, agrees to return the amount of any excess to such Borrower (or to any other Person who may be entitled thereto under applicable Law).

10.19 Facility Allocation Mechanism.

(a) Implementation of FAM. On the FAM Exchange Date, (x) the Commitments shall, unless, on or prior to the FAM Exchange Date, the Required Lenders under each Facility shall have otherwise directed the Administrative Agent (but without limiting the applicability of any conflicting provision of Article VIII), automatically and without further act be terminated as provided in Article VIII, (y) the Lenders shall automatically and without further act (and without regard to the provisions of Section 10.06), unless, on or prior to the FAM Exchange Date, the Required Lenders under each Facility shall have otherwise directed the Administrative Agent, be deemed to have exchanged interests in the Facilities such that in lieu of the interest of each Lender in each Facility in which it shall have assumed an interest and/or participated as of such date (including such Lender’s interest in the other Obligations of each Loan Party in respect of each such Facility), such Lender shall hold an interest in every one of the Facilities (including the other Obligations of each Loan Party in respect of each such Facility and each L/C Reserve Account established pursuant to clause (b) below), whether or not such Lender shall previously have participated therein, equal to such Lender’s FAM Percentage thereof and (z) simultaneously with the deemed exchange of interests pursuant to clause (y) above, in the case of any FAM Dollar Lender that has prior to the date thereof notified the Administrative Agent and the Company in writing that it has elected to have this clause (z) apply to it, the interests in the Australian Dollar Loans to be received by such FAM Dollar Lender in such deemed exchange shall, automatically and with no further action required, be converted into the Dollar Equivalent, determined using the Spot Rate calculated as of such date, of such amount, and on and after such date, all amounts accruing and owed to such FAM Dollar Lender in respect of such Obligations shall accrue and be payable in Dollars at the rate otherwise applicable hereunder; provided that such FAM Exchange will not affect the aggregate amount of the Obligations of the Borrowers to the Lenders under the Loan Documents. Each Lender and each Loan Party hereby consents and agrees to the FAM Exchange, and each Lender agrees that the FAM Exchange shall be binding upon its successors and assigns and any person that acquires a participation in its interests in any Facility. Each Loan Party agrees from time to time to execute and deliver to the Administrative Agent all promissory notes and other instruments and documents as the Administrative Agent shall reasonably request to evidence and confirm the respective interests of the Lenders after giving effect to the FAM Exchange, and each Lender agrees to surrender any promissory notes originally received by it in connection with its Loans hereunder to the Administrative Agent against delivery of new promissory notes evidencing its interests in the Facilities; provided, however, that the failure of any Loan Party to execute or deliver or of any Lender to accept any such promissory note, instrument or document shall not affect the validity or effectiveness of the FAM Exchange.

As a result of the FAM Exchange, upon and after the FAM Exchange Date, each payment received by the Administrative Agent or the Australian Administrative Agent pursuant to any Loan Document in respect of the Obligations, and each distribution made by the Administrative Agent or the Australian Administrative Agent pursuant to any Loan Document in respect of the Obligations, shall be distributed to the Lenders pro rata in accordance with their respective FAM Percentages. Any direct payment received by a Lender upon or after the FAM Exchange Date, including by way of setoff, in respect of any Obligation shall be paid over to the Administrative Agent for distribution to the Lenders in accordance herewith.

 

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Notwithstanding anything in this Section 10.19 to the contrary, no Lender shall receive any interest in any Obligation of a Loan Party in respect of a U.S. Sub-facility or any rights with respect thereto if such Lender’s receipt of such interest or right would cause the Company or any of its Subsidiaries to include any amount in income under Section 956 of the Code.

(b) Letters of Credit. In the event that on the FAM Exchange Date any Letter of Credit shall be outstanding and undrawn in whole or in part or there shall be any unpaid L/C Obligation under any such Letter of Credit, each applicable Lender shall, before giving effect to the FAM Exchange, promptly pay over to the Administrative Agent, in immediately available funds and in the currency that each such Letter of Credit is denominated, an amount equal to such Lender’s Applicable Percentage of U.S. Revolving Loans or Australian Revolving Loans, as applicable, of each such Letter of Credit’s undrawn face amount or (to the extent it has not already done so) such L/C Obligation, as the case may be, together with interest thereon from the FAM Exchange Date to the date on which such amount shall be paid to the Administrative Agent at the rate that would be applicable at the time to a U.S. Revolving Loan that is a Base Rate Loan in a principal amount equal to such amount, as the case may be. The Administrative Agent shall establish a separate account or accounts for each Lender (each, an “L/C Reserve Account”) for the amounts received with respect to each such Letter of Credit and/or L/C Obligation pursuant to the preceding sentence. The Administrative Agent shall deposit in each Lender’s L/C Reserve Account such Lender’s FAM Percentage of the amounts received from the Lenders as provided above. The Administrative Agent shall have sole dominion and control over each L/C Reserve Account, and the amounts deposited in each L/C Reserve Account shall be held in such L/C Reserve Account until withdrawn as provided in paragraph (ii), (iii), (iv) or (v) below. The Administrative Agent shall maintain records enabling it to determine the amounts paid over to it and deposited in the L/C Reserve Accounts in respect of each Letter of Credit and/or L/C Obligation and the amounts on deposit in respect of each Letter of Credit and/or L/C Obligation attributable to each Lender’s FAM Percentage. The amounts held in each Lender’s L/C Reserve Account shall be held as a reserve against such Lender’s Applicable Percentage of the L/C Obligations then outstanding, shall be the property of such Lender, shall not constitute Loans to or give rise to any claim of or against any Loan Party and shall not give rise to any obligation on the part of any Borrower to pay interest to such Lender, it being agreed that the reimbursement obligations in respect of Letters of Credit shall arise only at such times as drawings are made thereunder, as provided in Section 2.03.

In the event that after the FAM Exchange Date any drawing shall be made in respect of a Letter of Credit, the Administrative Agent shall, at the request of the applicable L/C Issuer, withdraw from the L/C Reserve Account of each Lender any amounts, up to the amount of such Lender’s FAM Percentage of such drawing, deposited in respect of such Letter of Credit and remaining on deposit and deliver such amounts to the applicable L/C Issuer in satisfaction of the reimbursement obligations of the Lenders under Section 2.03 (but not of any Borrower under Section 2.03, respectively). In the event any Lender shall default on its obligation to pay over any amount to the Administrative Agent in respect of any Letter of Credit as provided in this Section 10.19, the applicable L/C Issuer shall, in the event of a drawing thereunder, have a claim against such Lender to the same extent as if such Lender had defaulted on its obligations under Section 2.03, but shall have no claim against any other Lender in respect of such defaulted amount, notwithstanding the exchange of interests in the reimbursement obligations pursuant to Section 10.19(a). Each other Lender shall have a claim against such defaulting Lender for any damages sustained by it as a result of such default, including, in the event such Letter of Credit shall expire undrawn, its FAM Percentage of the defaulted amount.

 

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In the event that after the FAM Exchange Date any Letter of Credit shall expire undrawn, the Administrative Agent shall withdraw from the L/C Reserve Account of each Lender the amount remaining on deposit therein in respect of such Letter of Credit and distribute such amount to such Lender.

With the prior written approval of the Administrative Agent and the applicable L/C Issuer, any Lender may withdraw the amount held in its L/C Reserve Account in respect of the undrawn amount of any Letter of Credit. Any Lender making such a withdrawal shall be unconditionally obligated, in the event there shall subsequently be a drawing under such Letter of Credit, to pay over to the Administrative Agent, for the account of the applicable L/C Issuer on demand, its FAM Percentage of such drawing.

Pending the withdrawal by any Lender of any amounts from its L/C Reserve Account as contemplated by the above paragraphs, the Administrative Agent will, at the direction of such Lender and subject to such rules as the Administrative Agent may prescribe for the avoidance of inconvenience, invest such amounts in Cash Equivalents. Each Lender that has not withdrawn the amounts in its L/C Reserve Account as provided in paragraph (iv) above shall have the right, at intervals reasonably specified by the Administrative Agent, to withdraw the earnings on investments so made by the Administrative Agent with amounts in its L/C Reserve Account and to retain such earnings for its own account.

(c) Net Payments Upon Implementation of FAM Exchange. Notwithstanding any other provision of this Agreement, if, as a direct result of the implementation of the FAM Exchange, a Borrower is required to withhold Indemnified Taxes from amounts payable to the Administrative Agent, any Lender or any Participant hereunder, or if Indemnified Taxes are otherwise imposed on such amounts, or if the Administrative Agent or any Lender or Participant hereunder is required to pay any such Indemnified Taxes, the amounts so payable to the Administrative Agent, such Lender or such Participant shall be increased to the extent necessary to yield to the Administrative Agent, such Lender or such Participant (i) (after making all required withholding or deductions including withholding or deductions applicable to additional sums payable under this Section 10.19(c) or after payment of Indemnified Taxes) an amount equal to the sum such Administrative Agent, Lender or Participant, as the case may be, would have received had no such withholding or deductions been made or had such Indemnified Taxes not been imposed; (ii) the Borrowers shall pay the full amount withheld or deducted to the relevant taxation authority in accordance with applicable Law; and (iii) within 30 days of such payments, the applicable Borrower shall deliver to the Administrative Agent the original or certified copy of a receipt or other documentation reasonably satisfactory to the Administrative Agent evidencing payment thereof; provided, however, that the Borrowers shall not be required to increase any such amounts payable to such Lender or Participant under this Section 10.19(c) (but, rather, shall be required to increase any such amounts payable to such Lender or Participant to the extent required by Section 3.01 if such Lender or Participant was prior to or on the FAM Exchange Date already a Lender or Participant with respect to any Borrower. If a Foreign Lender, in its good faith judgment, is eligible for an exemption from, or reduced rate of, U.S. Federal withholding tax on payments by the Company under this Agreement, such Foreign Lender shall comply with the requirements of paragraph (e) of Section 3.01 as soon as practicable, and the Company shall not be required to increase any such amounts payable to such Foreign Lender to the extent of any U.S. withholding tax resulting from the failure by a Foreign Lender to so comply. If a Borrower fails to withhold, pay or remit any such Indemnified Taxes when due to the appropriate taxing authority or fails to remit to the applicable Agent the required receipts or other required documentary evidence, the Borrowers shall indemnify, on a joint and several basis, the applicable Agent,

 

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the applicable Lenders and the applicable Participants for any taxes, interest, costs or penalties that may be payable by such Agent, such Lenders or such Participants as a result of any such failure. This Section 10.19(c) shall not have any impact on the application of Section 3.01 to any payments to the extent Section 3.01 otherwise applies to such payments.

10.20 Limitations of Liability.

(a) General. The obligations of any Borrower and the rights of the parties (other than the Loan Parties) are subject to this Section 10.20 or any limitations set out in the Designated Borrower Notice executed by such Borrower despite any provision to the contrary in this Agreement or any other Loan Document.

(b) Borrowers incorporated in Australia. Despite any provision to the contrary in this Agreement or any other Loan Document, the obligations of a Borrower incorporated under the Laws of Australia will be limited to the extent necessary to ensure that such Borrower does not contravene Part 2J.3 of the Corporations Act 2001 (Cth).

(c) Certain Foreign Subsidiaries. Despite any provision to the contrary in this Agreement or any other Loan Document, no Borrower shall have any obligation directly or indirectly in respect of any Obligations to the extent that any such Obligation would result in an inclusion under section 956 of the Code for the Company or any of its Subsidiaries (calculated assuming in all events no limitation on the “earnings and profits” or “applicable earnings” of the relevant controlled foreign corporation as applied in that section).

10.21 Stamp Duties and GST.

(a) The Company must pay all stamp, transaction and other similar duties and charges in relation to the Loan Documents, and any security and any transaction under them. The Company shall also pay any fines and penalties unless they result from a failure by an Agent or a Lender to lodge a document for stamping in sufficient time, having received the amount of stamp duty and all necessary documents in a timely manner. The Company shall reimburse each Agent and each Lender for all such amounts paid by it with respect to such stamp, transaction and other similar duties and charges.

(b) All payments to be made by any Loan Party under or in connection with any Loan Document have been calculated without regard to GST.

(i) If all or part of any such payment is the consideration for a taxable supply for GST purposes then, when a Loan Party makes the payment:

 

(A)

it must pay to the applicable Agent or Lender, as the case may be, an additional amount equal to that payment (or part) multiplied by the appropriate rate of GST (currently 10% in Australia); and

 

(B)

such Agent or Lender, as the case may be, will promptly provide the Loan Party a tax invoice complying with the relevant GST legislation.

 

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(ii) Where under a Loan Agreement, the Loan Party is required to reimburse or indemnify for an amount, the Loan Party will pay the relevant amount (including any sum in respect of GST) less any GST input tax credit the relevant Indemnified Party determines that it is entitled to claim in respect of that amount.

10.22 Other Acknowledgements.

(a) (i) This Agreement takes effect as an agreement between the Company, the Lenders, the Administrative Agent, the Swing Line Lender, the U.S. L/C Issuer, the Australian Administrative Agent and the Australian L/C Issuer on execution of this Agreement by each such party. Until Collotype International Holdings Pty Limited executes this Agreement, all references to Collotype International Holdings Pty Limited as the Australian Borrower in this Agreement will be disregarded. A party to this Agreement is only bound by its obligations under this Agreement on and from the date it executes this Agreement.

(b) The Australian Administrative Agent acknowledges and agrees that it holds each Australian Security Document in its own capacity and as agent for the Australian Sub-facility Lenders.

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Annex B

Amended Form of Compliance Certificate

[See attached.]

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Schedule 7.03(i) to Credit Agreement

Adhesion Acquisition Acquired Indebtedness

[See attached.]